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t"  A.  00    L.  :. 


THE     LAW 


OF 


Constructive  contEiVift 


THE  SHEPHERD  CASE  REVIEWED. 


By  JOHN    L.   THOMAS, 

Ex-Judge  Missouri  Supreme  Court. 


ST.   LOUIS: 

THE   F.    H.    THOMAS    LAW    BOOK   CO. 

1904. 


T 


Entered  according  to  Act  of  Congress,  in  the  year  190-4,  by 

JOHN  L.  THOMAS, 
In  the  Office  of  the  Librarian  of  Congress,  at  Washington. 


Press  0/ Nixon- Jones  Printing  Co., 
216  Pine  Street,  St.  Louis. 


Boni  J  ltd  Ids  est  (inipliare  jurisdictioiK^in. 

''''Men  are  not  corrupted  hy  the  exercise 
of  (I  poirer  or  debased  hy  the  liahit  of  obe- 
dience: hut  hy  the  exercise  of  power ^  which 
they  believe  to  be  illegal  and  by  obedience  to  a 
rule,  which  they  consider  to  be  usurped  and 
oppressive.^' —  De  Tocqueville. 


740038 


The  Law  of  Constructive  Contempt. 

THE  FREEDOM  OF  THE  PRESS  — 
THE  SHEPHERD  CONTEMPT  CASE 
REVIEWED. 

TKELIMrXARY    STATEMENT. 

Ill  a  proceeding,  by  attachment  for  con- 
tempt, against  J.  M.  Shej^herd,  editor  of 
the  Warrensburg  Standard  Herald,  the  Su- 
preme Court  of  Missouri,  in  July,  1903,  as- 
sumed jurisdiction  to  try  and  fine  Mr.  Shep- 
herd for  puljlishing,  in  his  ])aper,  an  editorial, 
which  the  court  held  to  be  a  libel  upon  itself. 

This  was  the  first  time  the  Supreme  Court, 
or  any  other  court  in  Missouri,  ever  assumed 
to  exercise  such  jurisdiction  in  such  case. 
The  people  had  supposed  for  eighty  years 
that  when  a  person  chose  to  criticise  any 
ofHcer  or  judge  of  the  State,  by  newspa])er 
publication,  he  would  enjoy  the  right  to  be 
tried  by  a  jury  of  his  peers,  for  any  alleged 
abuse  of  his  privilege  of  saying,  writing,  or 
publishing  "  whatever  he  will  on  an}'  sub- 
ject;  "  and  this  action  of  the  couit  created 
almost  universal  surprise  among  the  people, 
and  it  has  brought  to  the  fore,  again,  a  ques- 
tion that  a  century  or  more  ago  engaged  the 
energies  and  abilities  of  the  wisest  statesmen 
and  i)ublicists  of  England  and  the  United 
States. 

In  October,  1903.  the  Supreme  Court  in 
banc,  through  ]\tr.  Justice  Marshall,  filed  an 
(5) 


()  THK    LAW    or    CONSTKUCTIVK    CONTEMPT. 

opinion,  in  whicii  all  concurred,  giving,  at 
great  l(Migth,  its  I'easons  for  its  assumption  of 
jurisdiction  in  the  case,  and  it  is  this  oj)inion 
I  propose  to  review  in  this  paper.  I  do  this 
because  I  feel  sui'e  some  of  the  principles  laid 
down  l)y  the  court  are  fundamentally  wrong, 
and  contravene  essential  tenets  of  liberty  — 
that  is,  the  freedom  of  the  press,  and  the 
right  of  ti'ial  by  jury  for  an  alleged  abuse  of 
such  freedom.  These  principles,  laid  down 
b}^  the  court,  are  not,  in  my  humble  judgment, 
sound,  and  ought  not  to  be  acquiesced  in  by 
the  people,  and  thus  become  part  of  the  per- 
manent law  of  the  State. 

And  at  the  threshold  of  this  discussion,  I 
do  not  desire  to  be  understood  as  impugning 
the  motives  or  sincerity  of  the  judges  who 
wrote  and  concurred  in  the  opinion  in  this 
case.  I  was  judge  of  the  Circuit  Court  ten 
years,  and  of  the  Supreme  Court  two  years, 
and  I  believe  I  have  as  high  an  appreciation  of 
the  majesty  of  the  law,  and  of  the  dignity 
and  independence  which  should  appertain  to  a 
judge  in  the  performance  of  his  duties  as  any 
man  living,  and  I  would  not  say  a  word  to 
lessen  the  esteem  of  the  public  for  the  courts  ; 
and  in  this  review  I  desire  it  to  be  distinctly 
understood  that  I  combat,  and  intend  to  com- 
biit  only  the  reasoning  and  conclusion  of  the 
court,  and  not  its  motives. 

I  wish  to  add  at  this  point  that  I  want  it 
to  be  distinctly  kept  in  mind  in  reading  this 
review  that  I  can  conceive  of  no  greater  cal- 
amity that  could  befall  a  State  than  to  have 


THE    LAW    OF    CONSTKUCTIVK    CONTK.MrT.  i 

ti'ial  by  newspaper  prevail  and  for  the  coni'ts 
to  be  swerved  from  the  right  course  by  out- 
side influences.  Courts  ought  to  be  left  ab- 
solutely fr(;e  from  the  passion  of  the  hour  in 
their  adjudications  upon  the  rights  of  man. 
It  ought  to  be  so  that  when  a  judge  says  "  it 
is  the  opinion  of  the  court,"  the  uttermost 
parts  of  the  republic  ought  to  "  feel  and 
obey  the  mandate,"  but  this  can  never  be  the 
case  when  the  court  exercises  a  doubtful  ju- 
risdiction on  a  subject  of  such  absorbing  in- 
terest as  the  freedom  of  the  press  and  the 
right  of  trial  by  jury.  My  sole  object  in 
wi'iting  this  review  is  to  vindicate  the  rightful 
authority  of  the  law-making  power  without, 
however,  depriving  the  judiciary  of  that  dig- 
nity and  independence  which  ought  always  to 
attend  the  administration  of  the  law  in  civilized 
society. 

STATEMENT   OF    THE    CASE  AXD    OF  THE  QUES- 
TION  TO    BE    DISCUSSED. 

One  Henry  R.  Oglesby,  a  brakeman  in  the 
employ  of  the  Missouri  Pacific  Railway  Co., 
was  injured  by  the  derailment  of  a  train  on 
the  road  of  that  company  in  1892,  for  which 
he  brought  suit,  and  with  varying  results  the 
case  was  in  the  Circuit  and  Supreme  courts 
till  1903,  when  the  latter  court,  by  a  majoi'ity 
vote,  held  that  the  plaintiff  could  not  recover, 
and  refused  to  remand  the  case  for  a  new 
trial.  It  was  for  criticising  the  Supi'eme 
Court  in  connection  with  this  case  that  Mr. 
Shepherd  was  fined  five  hundred  dollars. 
After    the    fine    was   imposed    the    people   of 


8     THE  LAW  OF  CONSTRUCTIVE  CONTEMPT. 

Warrensbiirg  paid  it.  A  mass  meeting  was 
held  and  a  telegram  sent  to  him  to  "  hold  a 
stiff  upper  lip."'  Another  telegram  was  soon 
after  sent,  telling  him  to  "  draw  on  Citizens 
Bank  for  any  amount  needed,"  signed  "  Cit- 
izens Committee."  He  drew  for  enough  to 
pay  the  fine  and  costs  and  went  home  in  tri- 
umph, and  incidentally  it  may  be  noted  here 
that  the  objectionable  article  was  also  pub- 
lished in  the  Sedalia  Capital  without  com- 
ment, and  its  editor,  Mr.  J.  J.  Cundiff,  was 
also  attached  for  contempt,  and  fined  one 
dollar. 

It  is  not  the  intention  of  the  writer  to  call 
in  question  many  of  the  positions  taken  by 
the  court  in  the  Shepherd  case,  for  many  of 
them  are  unquestionably  sound.  But  the 
object  of  this  review  is  to  show  that  the  court 
was  in  error  in  holding  the  contempt  statute 
unconstitutional  and  void,  and  in  assuming 
jurisdiction  to  try  and  punish  the  respondent 
by  the  process  of  attachment  for  contempt, 
and  to  these  two  points  this  discussion  will 
be  confined. 

The  opinion  of  the  court  in  the  Shepherd 
case  is  printed  in  full  in  Appendix  L. 

THE  author's   view    of    the  question  in 

1884. 
In  188tl:  I  read  before  th(^  Conference  of 
the  j^isl  Prills  judges  of  this  State,  of  whom 
I  was  then  one,  a  pai)er  on  the  main  question 
involved  in  the  Shepherd  case,  a'  part  of 
which  I  desire  to  quote  here,  as  that  paper 
was  prepared  from  the  view  point  of  a  judge. 


THK    LAW    or    CONSTRUCTIVE    CONrEMPT.  9 

and  tliis  review  is  from  tlie  view  i)oint  of  a 
citizen  in  i)rivate  life.  In  tlie  i)ai)ei-  referred 
to,  I  said  :  — 

"  Tlie  motion  that  was  made  and  carried  at 
our  conference  at  Sweet  Springs  on  the  2fjth 
day  of  July  last,  that  I  |)repare  and  read  to 
yon  at  this  time  a  papei'  upon  the  law  a})pli- 
cable  to  contemi)t  of  court  in  this  State,  was 
prompted  by  an  informal  discussion  that  took 
place  amon<^-  us  at  that  time  in  regaid  to  the 
dangers  to  our  institutions  likely  to  grow  out 
of  '  trial  of  causes  by  newspaper,'  and  dur- 
ing the  discussion,  the  inrpiiry  was  made, 
'  What  is  the  limit  of  the  authority  of  courts 
of  record  to  punish,  by  the  process  of  attach- 
ment for  contempt,  parties  who  publish  or 
write  articles  which  tend  to  intiuence  the  de- 
cision of  a  pending  cause?  '  and  what  I  have 
to  say  now  will  be  mainly  directed  to  that 
phase  of  the  subject  of  contempt  of  court. 
This  is  an  exceedingly  interesting  and  impor- 
tant question,  not  only  in  its  historical  aspect, 
but  also  in  its  bearing  upon  the  development 
of  the  science  of  law,  and  the  growth  of  free 
institutions.  Every  thoughtful  man  natui'ally 
inquires.  How  can  the  freedom  of  the  press 
in  its  full  vigor,  and  the  independence  of  the 
judieiar}-,  be  i)reserved  and  maintained  at  the 
same  time? 

Theoretically,  this  (piestion  is  easily  an- 
swered. If  we  reason  a  priori  no  one  would 
hesitate  to  say  that  the  courts  ought  to  be 
clothed  with  the  power  to  suppress,  sum- 
marily, any  attempt  by  any  one  to  impropeily 


10  TlIK    LAW    OF    CONSTKUCTIVK    CONTEMPT. 

iiirtiiLMiee  the  (k'tcriiiination  of  a  peiuliiig  cauwc 
by  extraneous  matter,  and  to  turii  aside  the 
even  course  of  justice  by  tiie  excitation  of 
I)ulj]ic  indiojnation  and  clamoi' ;  but  in  reach- 
ing- a  practical  solution  of  the  problem  we 
encounter  serious  and  almost  insurmountable 
difliculties.  I  listened  last  summer  at  Sara- 
toga to  a  most  interesting  paper  read  by  Mr. 
Sheet  of  Texas  to  the  American  Bar  Asso- 
ciation, on  '  How  far  Public  Policy  ought  to 
influence  and  control  Judicial  Decisions.' 
The  writer  reached  a  conclusion  that  was, 
in  theory,  far  from  satisfactory  to  the  mem- 
bers of  the  Bai-  present,  and  which  antago- 
nized the  adjudged  cases  in  England  and 
America.  He  argued,  with  much  cogency, 
and  apparent  ingenuousness,  that  the  con- 
struction of  the  Federal  and  State  constitu- 
tions, and  the  statutes  made  in  pursuance 
thereof,  by  the  fludiciary  w^as  not  authoritatiye 
and  binding  upon  the  executive  and  legisla- 
tive dei)artments  of  government.  There  wa 
no  question  but  that  tlieoretically  he  was 
•wrong,  but  practicall}^  right.  This  phase 
of  the  question  is  exemplified  fully  in  the 
ultimate  outcome  of  the  Dred  Scott  decision. 
While  Chief  Justice  Taney's  decision  re- 
manded Dred  Scott  to  slavery,  the  principle 
of  that  decision  was  ignored  by  the  political 
departments  of  the  government,  and  w^as 
finally  overborne  by  them.  In  all  commun- 
ities where  the  masses  participate  in  the  gov- 
ernment, public  opinion  will  ultimately  be 
voiced  in  statutes,  or  crystallized  into  '  the  law 


TlIK    LAW    OF    CONSTRUCTIVK    CONTEMI'T.  1  1 

of  the  land,'  in  defiance  of  tlit-  sages  of  the 
law,  and  the  judicial  detei'inination  of  the 
courts.  The  Legal  Tender  decisions  are  sad 
reminders  of  the  silent  power  and  inHuence 
of  the  executive  in  our  courts.  And  public 
opinion  is  pressing  the  princii)le  of  the  Dart- 
mouth College  cases  to  the  wall. 

All  the  instances  I  have  named  ai'e  of 
Federal  origin,  where  the  judicial  department 
is  as  far  fi'om  the  interference  of  the  j^oliti- 
cal  departments  as  it  is  possible  to  make  it. 
If  we  find  that  the  political  power  finally 
controls  the  determination  of  legal  questions 
in  the  judicial  administration  of  the  general 
government,  a  fortiori,  will  we  find  this 
inliuence  more  potent  in  the  administration 
of  affairs  in  the  States,  where  the  people 
elect  their  judges,  as  well  as  their  governors 
and  legislatoi"S. 

Now,  if  we  view  the  question  of  contemi)t 
in  the  light  of  history,  we  will  find  that  this 
same  ])ublic  opinion  has  gained  the  mastery 
over  the  courts,  and  has  voiced  itself  in 
statutes  limiting  the  power  to  punish  by  the 
summary  process  of  attachment.  The  free- 
dom of  the  presij  has  cost  too  much  in  blood 
and  money  to  be  lightly  esteemed.  It  is 
deservedly  dear  to  the  lovers  of  libei'ty  evei'y- 
where.  The  shouts  of  the  i)eople  of  Lon- 
don —  of  London,  ever  loyal  to  her  sov- 
ereign —  when  they  carried  Lord  Erskine 
through  the  streets  after  his  famous  speeches 
in  the  defense  of  Ilorne  Tooke,  Thelwall  and 
others  for  their  criticisms  of  the  government. 


12  THE    LAW    OF    CONSTKUCTIVi:    CONTEMPT. 

arc  but  the  t'xpi-cssions  of  the  sympathies  and 
opinions  of  the  masses  of  our  own  times  and 
of  all  times.  Those  shouts  thouf^h  given  out 
by  excited  men  were  not  the  utterances  of 
the  moment  simply,  but  were  deep  manifes- 
tations of  the  popular  mind  in  its  determina- 
tion to  strike  off  the  last  fetters  that  en- 
tinalled  the  press.  The  people  have  fouo^ht 
for  freedom  of  speech,  and  of  the  press,  and 
they  will  maintain  it  at  all  hazards.  In  my 
mind  there  is  no  greater  boon  vouchsafed  our 
times  than  the  press.  But  the  independence 
of  the  Judiciary  is  of  equal  importance  with 
the  freedom  of  the  pi'ess.  Lord  Erskine,  the 
great  defender  of  free  thinking,  free  speak- 
ing, and  free  printing,  also  found  means, 
while  upon  the  bench,  to  vindicate  and  uphold 
the  integrity  and  independence  of  the  courts. 
Public  opinion  is  like  the  pendulum  of  a 
clock.  It  constantly  swings  from  one  ex- 
treme to  another.  Once  in  England  the 
people  got  nothing  from  the  press  but  what 
came  filtered  through  the  sieve  of  the  censors, 
and  was  marked  and  licensed  like  our  cigars 
and  wine.  We  cannot  well  avoid  com])aring 
this  with  the  exploit  of  that  gallant  man  who 
thought  to  pound  up  the  crows  by  shutting 
his  park  gate.  Xow  we  have  not  only  an  un- 
licensed but  a  sensational  press;  then,  Just 
criticism  was  stifled.  Now  there  is  nothing 
too  sacred  to  exempt  it  from  vile  vituperation 
and  slander;  then,  the  courts  prohibited 
the  publication,  without  permission,  even  of 
true  accounts  of  causes  pending  before  them. 


TlIK    LAW    OF    CONSTRUCTIVE    CONTEMl1\  I'.i 

Now,  we  Imvc  laid  IjL't'orc  us  daily,  not 
only  true,  but  often  one-sided  and  distoi'ted 
aecount.s  of  cases  on  trial,  often  accom- 
panied by  comments,  unfavorable  to  one 
side  or  the  other.  And  yet  deep  down  in 
the  lijearts  of  the  masses,  we  find  a  popu- 
lar leverence  for  the  Bench,  which  pei'vades 
all  classes.  The  Judiciai'y  is  I'egarded  as  the 
bahmce  wheel  of  our  system.  To  it  the  peo- 
ple look  foi'  the  [)i'eservation  of  their  institu- 
tions. This  branch  of  the  government  is 
eminently  conservative  in  its  tendencies;  and 
confidence  in  its  integrity,  and  resi)ect  for  its 
authority  are  essential  to  its  eificiency.  But 
the  powei"  to  punish  for  contempt,  as  it  has 
been  exercised,  has  always,  esi)ecially  in 
America,  been  viewed  by  the  people  with  jeal- 
ousy. This  power  is  in  its  nature  arbitrai*y, 
and  antagonizes  those  great  principles  of 
liberty,  ever  held  dear  to  the  subject  and  citi- 
zen, in  clothing  a  party  with  authoi-ity  to  sit 
as  judge  in  his  own  case,  in  C()mi)elling  a 
party  to  give  evidence  against  himself,  and  in 
denying  the  right  of  trial  by  jury.  But  the 
courts  have  met  but  little  opposition  from  the 
people  to  the  enforcement  of  ordei*  in  their 
own  precincts,  and  obedience  to  their  lawful 
ordei's ;  because  such  authoiity  has  always 
been  regarded  as  essential  to  the  ti'ansaction 
of  business,  and  the  administration  of  the  law, 
and  so  long  as  couits  confined  themselves  to 
this  limit,  they  were  heartily  sanctioned,  and 
even  where  they  assumed  jurisdiction  to  pun- 
ish for  contempt  not  committed  in   theii-  im- 


14  THE    LAW    OF    CONSTRUCTIVE    CONTEMPT. 

mediate  ])resence,  where  no  great  principle  of 
liijerty  or  right  was  infringed,  they  met  no 
opposition  ;  but  where  they  have  assumed  to 
determine  the  extent  to  wdiich  criticism  of 
tlieir  conduct  could  be  carried  by  the  public 
press,  the}'  have  encountered  fierce,  and 
oftentimes  successful  resistance. 

The  people  have,  for  centuries,  fought  for 
the  right  of  trial  by  jury  and  the  freedom  of 
the  press,  and  it  is  not  to  be  wondered  at  that 
the  power  to  arrest  without  warrant,  and  try 
without  jury,  and  i)unish  in  a  summary  and 
arbitrary  manner,  was  received  with  alarm, 
and  that  such  power,  in  so  far  as  it  affected 
the  press  has  been  resisted  by  the  executive 
and  legislative  branches  of  the  government; 
because  there  the  populai'  sense  found  expres- 
sion more  easily  than  in  the  courts.  Black- 
stone  says,  '  The  process  of  attachment  for 
these  and  like  contempts  must  necessarily  be 
as  ancient  as  the  laws  themselves.  For  laws 
without  a  competent  authority  to  secure  their 
administration  from  disobedience  and  con- 
tempt, would  be  vain  and  nugat'or^^  A  power 
therefore  in  the  supreme  courts  of  justice  to 
suppress  such  contempt  by  immediate  attach- 
ment of  the  offender  results  from  the  first 
principles  of  judicial  establishments,  and 
must  be  an  inseparable  attendant  upon  every 
superior  tribunal.' 

This  is  the  general  common  law  doctrine, 
but  the  elementary  writers,  as  well  as  the 
adjudged  cases  all  concur  in  limiting  the  power 
to  puni'^h  for  contempt  committed  by  a  letter. 


TIIK    LAW    or    CONSTRUCTIVE    CONTEMPT.  I /) 

writing  or  pul)lieati(>n,  to  those  eases  only 
wliei'i'  tlieru  was  an  attempt  to  inlluence  the 
ultimate  decision  of  some  ])i'Oceeding  pending 
in  conrt.  If  the  proceeding  had  terminated 
1)}'  the  entry  by  the  court  of  the  final  order, 
then  this  power  ceased,  and  a  party  offending 
could  be  punished  only  by  indictment  oi-  in- 
formation." 

After  a  review  of  the  authorities,  I  pro- 
ceede<]  :  "  I  think  also  that  a  review  of  the 
above  and  other  authorities  will  show  that 
statutes  pi'escribing  what  shall  be  held  to  be 
contem[)t,  when  there  are  no  restrictive  or 
negative  words  used,  will  not  oust  the  com- 
mon law  jurisdiction  of  the  courts  to  punish 
for  other  common  law  contempts.  Such 
statutes  are  held  to  be  declaratory  only  of  the 
common  law  to  that  extent.  And  so  ,the 
courts  have,  with  one  or  two  rare  exceptions, 
held  that  the  bill  of  rights  to  be  found  in  the 
Federal  and  American  constitutions,  securing 
fi-eedom  of  speech,  and  of  the  ])ress  to  the 
citizen,  and  securing  to  evei-y  one  the  right 
of  trial  by  jury,  or  to  '  due  process  of  law,' 
has  not  deprived  the  courts  of  theii*  inherent 
power  to  protect  themselves,  and  vindicate 
theii'  own  honor  and  dignity.  The  [^ower  to 
punish  for  contempt  was  a  part  of  the  com- 
mon law,  and  was  confirmed  by  Magna  Charta, 
and  when  one  was  fined  or  imprisoned  by  this 
process,  he  was  held  to  have  been  fined  or 
imprisoned  according  to  the  law  of  the  land." 

After  quoting  our  Bill  of  Kights  in  regard 
to  free  speech  and  a  free  press  and  the  con- 


1()         THE    LAW    OF    CONSTRUCTIVE    CONTEMPT. 

tempt  statute  in  full.  I  concluded  as  follows  : 
"  After  having  said  what  I  have  on  tlie  gen- 
eral subject  of  contempt,  I  do  not  deem  it 
necessary  to  enter  into  any  lengthy  disquisi- 
tion in  regard  to  the  construction  of  these 
various  statutory  and  constitutional  provi- 
sions, and  the  limitations  imposed  on  the 
authority  of  the  courts  of  Missouri  to  punish 
parties  guilty  of  contempt  by  the  process  of 
attachment  and  I  shall  content  myself  with  a 
very  brief  summary  of  my  views  on  the 
subject. 

My  first  position,  and  the  one  that  will 
probably  interest  you  most,  is  that  the  legis- 
lative department  of  the  government  has  the 
power  to  control  and  restrict  the  judicial  in 
the  exercise  of  its  authority  to  punish  for  con- 
tempt, and  that  the  latter  cannot  go  beyond 
the  limitations  prescribed  by  the  former. 
This  position  thus  formulated  is  the  result  of 
the  inexorable  logic  of  events,  and  is  attribu- 
table to  the  growth  of  the  law  under  demo- 
cratic institutions. 

My  second  position  is  that  the  provisions  of 
our  statutes,  which  I  have  quoted,  oust  the 
common  law  jurisdiction  of  the  courts  in  Mis- 
souri over  contempts,  and  have  set  limits  to 
their  authority,  be3^oud  which  they  cannot  go. 
The  judiciary  is  confined  to  the  acts  enumer- 
ated in  the  statutes,  and  in  the  language  of 
Section  1055,  can  punish  for  '  no  other.' 
The  statutes  of  1879  on  the  subject  are  liter- 
ally what  they  were  in  1835.  Prior  to  that 
time,  however,  no  negative  or  restrictive  words 


THE  LAW  OF  CONSTKUCTIVK  CONTEMPT.     17 

wurc  t(j  1)0  found  in  our  legislation,  and  of 
course  the  courts  were  not  restricted  to  the 
acts  named,  but  could  exercise  their  common 
law  jurisdiction  in  the  matter.  AVithout  the 
negative  and  restrictive  words  '  no  other,'  oi", 
as  Chief  Justice  English  in  the  Morrill  case 
terms  it,  'the  prohibitory  feature  of  the  act, 'the 
I'ule  would,  according  to  the  weight  of  author- 
ity, be  otherwise  than  I  have  above  assumed. 

Third  :  Xo  ci'iticism  by  the  public  press  of 
the  conduct  of  judges,  witnesses,  jurors, 
officers  of  the  coui't  or  parties,  is  an  act  pun- 
ishable by  the  process  of  attachment  for  con- 
tempt in  Missouri,  though  made  with  a  view 
of  influencing  the  determination  of  a  pending 
cause,  and  turning  aside  the  course  of  justice. 
This  [)hase  of  -the  question  has  never  to  my 
knowledge  been  before  our  Supreme  Court, 
and  hence  our  statute  in  that  particulai-  has 
never  been  construed  by  that  court,  but  Judge 
English,  in  speaking  of  the  terms  of  the 
Arkansas  statute,  which  is,  as  I  have  said,  a 
verbatim  copy  of  ours,  in  the  Morril  case, 
pointedly  said  :  '  It  is  conceded  that  the  act 
charged  against  the  defendant  in  this  case  is 
not  embraced  within  either  clause  of.  this 
statute.'  " 

All  of  this  T  fully  indoivse  to-day,  after 
twenty  years  of  reflection  and  careful  stud}'. 

THE      QUESTION     TO      BE     DISCUSSED     INT    THIS 
REVIEW. 

Did  the  General  Assembl}^  of  this  State  have 
the  constitutional  power  in  1835,  and  has  it 


18  THE    LAW    OF    CONSTRUCTIVE    CONTEMPT. 

now  the  power,  to  pass  the  statute  on  the  sub- 
ject of  contempt  of  court,  which  the  Supreme 
Court,  in  tlie  Shephei-d  case,  set  aside  as  un- 
constitutional in  order  to  acquire  jurisdiction 
in  that  case? 

Thequestioninvolves  also  the  meaning  of  the 
article  in  our  constitution,  which  has  from  the 
beginning  remained  the  same,  disti'ibuting 
governmental  power  among  the  three  co-ordi- 
nate departments  of  the  State  government, 
and  the  meaning  ot  the  -words  ''the  judicial 
power,"  and  the  words  "  the  legislative 
power,"  as  they  have  been  used  in  the  several 
constitutions,  that  have  been  in  force  in  the 
State,  that  of  1820,  that  of  1805,  and  that  of 
1875,  the  latter  being  now  in  force. 

If  the  question,  here  propounded,  be  an- 
swered in  the  negative  as  it  was  answered  b}'' 
the  Supreme  Court  in  the  Shepherd  case,  all 
the  other  positions  taken  by  the  court  that 
the  defendant  was  not  entitled  to  a  trial  by 
jury ;  that  the  punishment  inflicted  was 
according  to  "  the  law  of  the  land,"  etc.,  fol- 
low as  necessary  corollaries  of  this  answer. 
But  if  it  be  answered  in  the  affirmative,  as  I 
shall  answer  it,  then  the  jurisdiction  of  the 
court  to  impose  the  fine  in  the  She])herd  case 
falls  to  the  ground,  and  with  it  all  the  other 
positions  taken  by  the  court.  In  order  to 
fully  and  clearly  understand  the  discussion  in 
reofard  to  the  meanino;-  of  the  articles  in  our 
constitution  distributing  the  powers  of  the 
government,  and  confiding  "  the  legislative 
power"  to  the  General  Assembly,  and  "the 


THE    LAW    OF    CONSTKUCTIVE    CONTIO.M  1' 1.  1 1« 

judicial  power"  to  the*  courts,  as  ai)[)licable 
to  the  question  undei'  discussion,  it  is  ueces- 
sai-y  to  review,  briefly,  the  history  and  evolu- 
tion of  the  law  of  contempt,  the  law  of  libel, 
the  freedom  of  the  press,  and  the  right  of  trial 
by  jury  in  libel  cases.  This  history  I  will 
divide  into  four  epochs.  First,  prior  to  1820, 
when  our  first  constitution  was  adopted, 
second,  from  1820  to  1835,  when  the  con- 
tempt statute,  in  its  present  form,  was  first 
adopted  ;  third,  from  1835  to  1875,  when  our 
present  constitution  was  adopted,  and  fourth, 
from   1875  to  1903. 

FIRST    El'OClI. 

The  history  and  evolution  of  the  law  of  contempt,  the  kno 
of  libel,  the  freedom  of  the  press,  the  right  of  trial  by 
jury  in  libel  cases,  prior  ayid  up  to  1S20,  lohen  our  first 
constitution  was  adopted. 

PUBLICITY  —  THE    QUESTION     IN"    EXGLAM?. 

The  publication  of  the  Proceedings  of  Par- 
liament, and  of  the  legislative  assemblies  of 
the  American  Colotiies,  was  not  allowed  a 
century  and  a  half  ago.  The  theory  was 
that  the  law-givers  and  rulers  should  be  left 
to  act  absolutely  freed  from  the  restraints  of 
public  opinion,  and  that  the  peo|)le  did  not 
know,  and  could  not  know  what  was  best  for 
the  i)ublic  weal.  The  Kevolutions  of  1610- 
50  and  1688-9  awakened  the  people,  not  only 
in  England,  but  in  the  Colonies,  to  a  full 
realization  of  their  power  and  their  rights,  and 
it  developed  that  they  could  not  intelligently 
participate  in  their  government,  and  apply 
appropriate  remedies  for  the  evils  they  might 


20    THE  LAW  OF  CONSTRUCTIVE  CONTEMPT. 

find  in  tlie  administration  of  pnblic  at'fairw, 
without  a  knowledge  of  the  acts  of  those 
clothed  with  authority.  To  us  of  to-day  it 
seems  strange  that  such  a  self-evident  propo- 
sition as  that  the  people  should  know  what 
their  rulers  are  doing  should  ever  have 
been  questioned  or  doubted.  But  the  fact  is, 
the  struggle  for  the  publicity  of  legislative 
and  governmental  proceedings  of  every  kind 
was  a  long  and  fierce  one.  Tt  was  full  of 
bitterness  and  vituperation.  Even  judicial 
•proceedings  were  at  one  time  frequently  kept 
from  the  public.  The  "  Star  Chamber,"  in 
its  secret  halls,  and  behind  barred  doors,  was 
once  a  terror  to  the  people.  A  curious  episode 
in  <^his  connection  in  the  history  of  Pennsyl- 
vania may  be  cited.  In  1687  William  Brad- 
ford, a  printer  whom  Penn  had  induced  to 
come  to  the  province,  was  severely  censured 
by  the  Council,  presided  over  by  the  governor, 
for  i^rinting  the  charter  of  the  province.  This 
occurred  in  Pennsylvania  which  afterwards 
became  the  battle-ground  for  the  fiercest, 
most  spectacular  and  triumphant  struggle  for 
the  freedom  of  the  press  to  be  found  in  our 
annals.  This  struggle  will  be  noted  later  on. 
The  period  between  1765  and  1801  was  noted 
for  its  struggles  for  the  rights  of  the  masses 
of  the  people,  and  the  principles  of  libert}'. 
In  that  period  the  American  Colonies  won 
their  independence.  In  1769  a  struggle  for 
the  freedom  of  the  press  was  begun  in  En- 
gland by  John  Wilkes,  which  was  taken  up 
afterwai'ds    by   ITorne  Tooke,  Thomas  Paine, 


TIIK    LAW    OF    CONSTHUCTIVK    CONTKMI'T.  21 

Loi'd  Ii]iskine,  Fox  and  others,  wliich  tennin- 
atc'd  in  1792  in  the  passage  by  Pai-lianicnt  of 
what  is  known  as  "  The  Fox  Libel  Aet."  Prior 
to  that  act  in  a  criminal  prosecntion  for  libel, 
the  accused  was  not  allowed  to  prove  the 
tiuth  of  the  charge  he  had  made,  it  being 
gravely  asserted  that  "  the  gi-eater  the  truth, 
the  greater  the  libel."  As  showing  the  state 
of  the  law  of  libel  on  this  point  in  the  Ameri- 
can Colonies,  and  even  in  the  American  States 
a  hundred  years  ago,  I  call  attention  to  the 
cases  of  McDougal  and  Ci'osswell,  both  New 
York  cases.  (Appendix  A.)  Prior  to  the 
Fox  Libel  Act  it  was  also  well  settled  that  the 
question  of  libel  or  no  libel  was  for  the  court 
alone,  with  which  the  jury  had  nothing  to  do  ; 
but  that  act  revolutionized  the  whole  law  of 
libel  by  providing  that  in  all  suits  and  prosecu- 
tions for  libel,  the  truth  of  the  charge  may  be 
given  in  evidence  as  a  defense,  and  what  was 
still  more  im[)ortant,  the  jury  should,  under 
the  instructions  of  the  court,  be  the  judges  of 
the  law  and  fact.  In  other  words,  the  jury 
was  made  the  judge  not  only  whether  the  pub- 
lication had  been  made  but  also  whether  that 
publication  was  libelous  or  not ;  and  of  course 
the  jur3%  after  that  act,  as  well  as  befoi-e,  was 
the  sole  judge  of  the  degree  of  punishment, 
which  should  be  inflicted  in  a  criminal  pro- 
ceeding, and  the  amount  of  damages  to  be 
awarded  in  a  civil  case. 

The  Fox  Libel  act  not  only  embodied  these 
great  principles,  but  it  also  declared  that  the 
provisions    of  the  act    had   always  been    the 


22  THE    LAW    OF    CONSTRUCTIVE    COXTEIMPT. 

law,  though  previously  the  courts  had  uni- 
formly held  the  contrary.  It  was  during  our 
Revolutionary  struggle,  and  before  the  pas- 
sage of  the  Pox  Libel  Act  that  Blackstone's 
Commentaries  were  written  and  pubHshed, 
and  in  weighing  what  he  says  about  the  com- 
mon law  it  must  be  constantly  borne  in  mind 
that  he  was  a  Tory  of  the  strictest  sect,  and 
was  an  ultra  believer  in  the  divine  right  of 
kings,  and  of  kingly  prerogatives.  While 
Blackstone  is  perhaps  the  greatest  law  com- 
mentator of  the  world  on  the  law  in  general, 
what  he  says,  when  he  comes  to  treat  of  pre- 
rogatives and  governmental  power,  must  be 
scrutinized  very  closely,  when  we,  Americans, 
come  to  apply  it  in  our  affairs  under  our  free 
institutions.  I  throw  out  this  caution,  because 
we  now  have  to  deal  with  the  common  law  of 
England,  not  as  it  existed  at  the  time  Black- 
stone  wrote,  but  as  it  existed  in  1820,  at  the 
time  our  first  Constitution  was  adopted.  There 
is  another  Englishman  who,  in  my  judgment, 
comes  nearer  representing  the  later  English 
spirit  up  to  the  time  of  his  death,  in  1823, 
and  of  the  American  spirit  on  the  subject 
under  discussion  than  Blackstone,  or  any 
other  foreigner.  I  refer  to  Thomas  Erskine, 
Lord  Chancellor  of  England.  He  was  a  con- 
sistent Whig,  and  before  he  became  Lord 
Chancellor  he  was  foremost  in  the  fight  for 
the  freedom  of  the  press,  and  it  was  through 
his  influence  very  largely  that  the  Fox  Libel 
Act  was  put  through  Parliament.  In  1807, 
while  Lord  Chancellor,  one  McNamara  pub- 


THE    LAW    OF   CONSTKUCTIVE    f  ONTEMl'T.  23 

lisliod  an  article  wliieh  was  a  gross  misstate- 
ment of  the  proceedings  of  the  court  in  a  case 
decided  the  day  befoi'e,  and  was  manifestly 
printed  for  the  purpose  of  exculpating  the 
defendant  in  public  opinion,  and  of  rendering 
odious  his  opponents.  He  was  attached  for 
contempt,  and  Lord  Erskine  disposed  of  the 
case  thus :  — 

"  Though  this  was  certainly  a  case  in  which 
the  court  might  commit  the  offender  as  for  a 
contempt,  it  still  remained  to  be  considered 
whether  the  exercise  of  the  discretion  which 
the  court  must  necessarily  have  in  such  a 
case,  it  ought  to  do  so,  and  that  exercising 
that  discretion,  he  certainly  would  not  com- 
mit him." 

And  though  he  afterwards  sent  a  party  to 
the  Fleet  for  a  like  contempt  of  court,  his 
final  opinion  of  slich  a  question,  at  the  close 
of  his  great  career,  is  recorded  by  Lord 
Campbell  in  his  "  Life  of  Erskine."  After 
speaking  of  Lord  Erskine's  visit  to  Scotland 
in  1821  this  historian  adds :  — 

"  The  illusti'ious  stranger  next  visited  the 
Court  of  Justiciary,  and  appeared  there  with 
the  star  of  the  Order  of  the  Thistle  blazing 
on  his  breast.  The  question  to  be  considered 
was  one  that  had  occupied  his  thoughts  much 
while  he  was  Lord  Chancellor — IIow  far 
judges  should  interfere  to  punish  in  a  sum- 
mary manner  printed  comments  on  their  own 
proceedings.  A  schoolmaster  in  Glasgow 
had  [)ublished  in  a  newspa[)er  a  letter  disa[)- 
proving,    to  the  full,  of    a  judgment   of  his 


24  THE    LAW    OF    CONSTRUCTIVE    CONTEMPT. 

Lordship's  and  the  Lord  Advocate  com- 
plained of  this  as  a  contempt  of  conrt,  for 
which  the  cnlprit  ought  to  be  immediately 
committed  to  the  Tolbooth.  Mr.  Cockbiirn, 
the  defendant's  counsel,  argued  that  he  had 
not  exceeded  the  bounds  of  legitimate  discus- 
sion, and  that,  at  any  rate,  the  case  ought  to 
be  submitted  to  the  determination  of  a  jury, 
in  the  ordinary  course  of  law.  The  court, 
however,  asserted  its  jurisdiction,  and  passed 
sentence  of  imprisonment.  Lord  Erskine 
decorously  concealed  his  expression  of  opin 
ion  while  he  remained  on  the  bench,  but  in 
private  lamented  that  In  Scotland^  '  trial  hy 
jury  should  he  thus  siq^erseded.''  " 

I  give  this  not  for  the  purpose  of  showing 
that  the  courts  of  England  did  not  have  the 
power,  by  common  law,  to  punish  as  for  a 
contempt  a  publication  in  a  uewspaper,  but 
to  show"  that,  according  to  Erskine,  there  was 
some  question  about  it,  even  in  that  country, 
and  especially  after  the  passage  of  the  Fox 
Libel  Act. 

THE  HISTORY  OF  THE  LAW  OF  CONTEMPT, 
LIBEL,  AND  TRIAL  BY  JURY  IN  THE  AMERI- 
CAN STATES  PRIOR  TO  1820. 

The  McKean  Case.  —  The  first  contest  in 
regard  to  contempt  occurred  in  Pennsylvania 
in  1788.  Thomas  McKean,  a  signer  of  the 
Declaration  of  Independence,  and  a  staunch 
patriot  during  the  whole  Kevolutionary 
period,  was,  that  year.  Chief  Justice  of  that 
State,  and  one  Eleazar  Oswald  was  attached 
and    brought  before  him  and  his  associates, 


TIIK    LAW    OF    fONSTKlfTIVK    fONTKMrT.  25 

and  punished  foi-  contempt  of  court  in  pub- 
lishing an  article  in  his  newspaper  which  tlie 
court  held  reflected  on  tlie  [)artie.s  to  the  suit, 
and  the  court,  and  was  calculated  to  turn 
aside  the  course  of  justice  in  a  penrling  case. 
Oswald  carried  the  case  to  the  Legislatui-e,  and 
out  of  fifty-seven  votes,  twenty-three  voted  to 
condemn  this  action  of  the  court.  See  Ap- 
pendix B  for  a  full  report  of  this  case. 

The  8hippen  Case.  —  lu  1804  Edward 
Shippen  was  Chief  Justice  of  the  Pennsylvania 
Supreme  Court,  and  he  and  his  associates  pro- 
ceeded against  one  Passmoj-e  for  contempt  for 
the  publication  of  a  libel  on  the  parties  in  a 
pending  suit,  and  fined  him  fifty  dollars,  and 
ordered  him  imprisoned  for  thirt}^  days. 
Passmore  carried  this  case  also  to  the  Legisla- 
ture, and  the  Lower  House,  by  a  vote  of  G5 
to  16  presented  articles  of  impeachment 
against  Shipi)en  and  his  associates  for  this 
judgment,  and  on  a  ti'ial  before  the  Senate 
they  were  acquitted  by  a  vote  of  thirteen 
against  them  to  eleven  for  them,  the  prosecu- 
tion failing  because  a  tico-tln'rch  vott-  of  the 
Senate  was  required  to  convict.  A  report  of 
this  case  will  be  found  in  xVppendix  "  B.'- 

Now  it  must  not  be  forgotten  that  both  of 
these  cases  arose,  and  were  decided  before 
any  hnv  had  been  passed  by  the  Legislature 
of  Pennsylvania  restricting  the  jurisdiction 
of  the  courts  in  contempt  cases,  and  in  a 
State,  too,  that  gloried  in  the  fact  that  it  had 
inherited  the  common  law  of  England  instead 
of  having  introduced  it  by  statute  as  was  done 


2<)  THE    LAW    OF    COXSTKUCTIVE    CONTEMPT. 

in  Missouri.  But  after  the  decision  in  the 
Oswald  case  in  1788  the  jjeople  of  Pennsyl- 
vania began  an  agitation  for  a  legislative  re- 
stricting act;  but  Chief  Justice  McKean's 
opposition  up  to  1808  was  too  strong  to  be 
overcome.  But  as  soon  as  he  Avent  out  of 
office  as  governor,  the  people  asserted  them- 
selves, and  in  1809  enacted  a  law  under  the 
administration  of  Governor  Snyder,  expressly 
prohibiting  the  courts  from  exercising  juris- 
diction in  a  contempt  case  to  punish  for 
"  publications  out  -of  court,  respecting  the 
conduct  of  judges,  oflBcers  of  court,  jurors, 
witnesses  or  parties,"  and  so  vigorous  was 
the  protest  of  the  people  then  against  the 
exercise  of  the  power  to  punish  by  attachment 
for  newspaper  publication,  that  no  judge  of 
Pennsylvania  has,  from  that  day  to  this,  dared 
to  call  that  statute  in  question. 

In  Xew  York  after  the  trial  of  Crosswell 
heretofore  referred  to,  the  General  Assembly 
of  that  State  in  1805  passed  a  law  similar  to 
the  Fox  Libel  Act. 

THE     ALIEN     AND     SEDITION     LAWS    OF    1798. 

I  will  not  go  into  the  details  of  these  laws, 
nor  the  trials  thereunder,  as  full  reports  of 
these  appear  in  Appendices  "  C,"  *'  D,"  •'  F  " 
and  "  G."  Suffice  it  to  say  here  that  Mr. 
Thomas  Jefferson  in  his  presidential  cam- 
paign of  1799-1800  made  a  direct  appeal  to 
the  peoj^le  from  the  prosecutions  under  these 
laws,  condemning  them  on  the  ground  of 
their  unconstitutionality,  and  won ;  and  so 
odious   did   he  and    his  adherents   make  this 


TIIK    KAW    OF    CONSTIUf'TIVK    fONIKM  1' T .  2  I 

class  of  laws,  that  never  sinee  has  there  hccii 
the  shghtest  desire  to  renew  them,  with  the 
exception,  howevei',  of  what  occurred  after 
Pi-esident  McKiiiley's  assassination.  Upon 
that  ever-to-be  lamented  event  —  theie  was 
some  wild  talk,  all  over  the  country,  not  con- 
fined to  party  lines,  demanding  some  repressive 
measure  against  the  teachings  of  anarchists, 
but  this  talk  was  nevei*  crystallized  into  law. 

THE  HISTORY  OF  THE  QUESTIOX    IN'    MISSOURI. 

The  territory  west  of  the  ^NFississippi  was 
not  an  English  colony,  but  Spanish,  and  when 
we  acquired  the  same  in  1803,  Spanish  laws 
were  in  force  and  remained  in  force  till  1816, 
when  the  territorial  legislature  })assed  this 
act:  "The  common  law:  of  England,  which 
is  of  a  general  nature,  and  all  statutes  made 
by  the  British  Parliament  in  aid,  or  to  supply 
the  defects  of,  the  common  law,  made  pi'ior 
to  the  fourth  3'ear  of  James  First,  and  of  a 
general  nature,  and  not  local  to  that  king- 
dom, which  said  common  law  and  statutes  aie 
not  contrary  to  the  laivs  of  this  territory,  and 
not  repugnant  to,  nor  inconsistent  with  the 
constitution  and  laws  of  the  United  States, 
shall  be  the  rule  of  decision  in  this  territory 
until  altered  or  repealed  by  the  legislature, 
any  law,  usage  or  custom  to  the  conti'ar}^ 
notw^ithstanding;  provided,  however,  that 
none  of  the  Bi'itish  statutes  respecting 
crimes  and  punishments  shall  be  in  force  in 
this  territor}^ ;  nor  shall  any  [)erson  be  pun- 
ished by  common!  law,  when  the  laws  of  this 
territory  have  made  provisions  on  the  subject; 


28    THE  LAW  OF  CONSTRUCTIVK  CONTEMPT. 

but  where  the  hiwsand  statutes  of  the  United 
States,  and  this  territory,  have  not  made  pro- 
vision foi*  the  punishment  of  offenses,  the 
several  courts  may  proceed  to  punish  for  such 
offenses  provided  the  punishment  shall  in  no 
case  be  other  than  fine  and  imprisonment,  and 
the  term  of  imprisonment  shall  not  exceed 
two  months,  and  the  fine  shall  not  exceed  one 
hundred  dollars." 

So  far  as  I  have  been  able  to  discover,  there 
had  not,  prior  to  1820,  been  a  single  case  de- 
cided in  the  American  States  after  the  Pass- 
more  case,  in  which  a  party  was  punished  by 
the  court,  as  for  a  contempt,  for  a  publica- 
tion in  a  newspaper,  and  I  know  there  was 
none  declaring  the  legislature  had  no  power 
to  pass  a  law,  foi'l)ir]ding  the  exercise  of  such 
jui'isdiction  for  such  publication. 

This  was  the  state  of  the  law,  and  these 
wei'e  the  conditions  under  which  the  people  of 
Missouri  wrote  and  adopted  the  Constitution 
of  1820.  That  Constitution  in  Art.  2,  de- 
clared "  The  powers  of  government  shall  be 
divided  into  thi'ce  distinct  departments;  and 
no  person,  charged  with  the  exercise  of  powers 
properly  belonging  to  one  of  these  depart- 
ments, shall  exercise  any  power  properly  be- 
longing to  either  of  the  others,  except  in  the 
instances  hereinafter  expressly  directed  or 
permitted." 

Sec.  1,  Article  3  provided:  ''  The  legisla- 
tive power  shall  be  vested  in  a  Genei'al  As- 
sembly, which  shall  consist  of  a  Senate  and  of 
a  House  of  Representatives." 


THK  LAW  OF  CONSTKUCTI VK  fONTKMl'T.    2d 

Sec.  1,  Article  5  was  as  lollow.s:  "  The 
jii(Ji('ial  power,  as  to  matters  of  law  and  e(|uity, 
shall  be  vested  in  the  Supreme  Coiut,  in  a 
Chancellor,  in  Circuit  Courts,  and  in  such 
infei'ior  tribunals  as  the  General  Assembly 
may  from  time  to  time  order  and  establish." 

Sec.  1(3  of  the  Bill  of  Rights  provided  : 
"  That  the  free  communication  of  thoughts 
and  opinions  is  one  of  the  invaluable  I'ights 
of  man,  and  that  every  person  may  fully 
speak,  write  and  print  on  any  subject,  being 
resj^onsible  for  the  abuse  of  that  liberty ;  and 
in  all  })rosecutions  foi-  libel,  the  truth  thereof 
may  be  given  in  evidence,  and  the  jury  may 
determine  the  law  anrl  the  facts  under  the 
direction  of   the  cou!'t." 

SECOND    EPOCH. 

The  history  of  this  (juestion  from  the  adojUion  of  the 
Coiistitulion  of  1820  to  the  enactment  of  the  contempt 
statute    in  1835. 

In  the  revision  of  the  statutes  of  1825,  there 
was  .  a  chapter  headed  *"  Judicial  Power," 
and  under  that  head  the  following  section  ap- 
peared :  "That  the  several  courts  aforesaid 
shall,  respectively,  have  power  to  punish,  by 
fine  and  imprisonment,  the  officers  of  their 
courts  respectively,  for  an}'  official  miscon- 
duct, and  all  such  officei's,  parties,  jurors  and 
witnesses,  for  any  disobedience  of  the  process 
of  the  court ;  and  any  person  whatsoever  for 
any  contempt  by  him  committed  towards  such 
courts,  or  for  any  disorderl}-  or  contemptuous 
behavior  in  tlieir  presence,  while  in  session, 
or  in  any  manner  obstructing  the  administra- 


30  TIIK    LAW    OF    CONSTKUCTIVE    CONTEMPT. 

tion  of  justice,  and  to  issue  attachmeuts  agaiust 
auy  person  so  offending.  Bat  in  no  case 
shall  the  fine  exceed  one  hundred  dollars^  nor 
the  imprisonment  he  for  a  longer  period  than 
thirty  days,  and  until  the  fine  and  costs  are 
paid."  There  being,  however,  no  negative 
words  restricting  the  jui'isdiction  of  the  courts 
to  the  cases  enumerated,  under  the  general 
rule  as  applied  b}'  the  courts,  that  statute 
would  ])robably  have  been  construed  to  be 
declaratory  of  the  common  law,  so  far  as  it 
went,  and  did  not  restrict  the  jurisdiction  of 
the  courts  to  the  instances  named,  but  as  to 
the  fine  and  imprisonment  the  courts  were 
ahsolutely  limited  by  that  act. 

In  the  revision  of  the  statutes  in  1825,  the 
statute  introducing  the  common  law  into  our 
State  was  somewhat  modified,  so  as  to  read 
as  follows :  — 

"  The  common  law  of  England,  and  all 
statutes  and  acts  of  Parliament  made  prior 
to  the  fourth  year  of  the  reign  of  James  the 
First,  and  which  are  of  a  general  nature,  not 
local  to  that  kingdom,  and  wliich  common 
law  and  statutes  are  not  repugnant  to,  or  in- 
consistent ivith  the  Constitution  of  the  United 
States,  the  Constitution  of  this  State,  or  the 
statute  laws  in  foixe  for  the  time  heing,  shall 
be  the  rule  of  action  or  decision  in  this  State, 
any  law,  custom  or  usage  to  the  contrary  not- 
withstanding." 

The  second  section  limited  the  punishment 
under  the  common  law  to  a  fine  of  one  hun- 
dred dollars,  and  imprisonment  two  months. 


TIIK    LAW    OF    ("ONSTRUCTIVE    CONTEMIT.  31 

And  thus  the  law  stood  ii»  the  revisions  of 
1835,  1845,  1855,  1805,  1879  and  1889,  and 
thus  it  stands  to-day  in  the  revision  of  1899. 

TJie  Pf^cl-  liii]y^(i<'liiii(nif  ('a^e.  —  Tliis  arose 
in  1820-31,  and  was  a  fierce  contest  along  the 
same  lines  on  which  the  McKean  and  Shi[)pen 
cases  were  waged.  James  II.  Peck  was  judge 
of  the  United  States  District  Court  of  Mis- 
souri, and  attached  Luke  Lawless,  an  attoi- 
ney  of  the  court,  for  contempt,  foi-  publishing 
an  article  ci'iticising  one  of  his  opinions,  and 
ordered  Lawless  imprisoned  for  twenty-four 
hours  and  be  disbai'red.  Lawless  appealed  to 
Congress,  and  after  many  efforts  the  House 
of  Representatives,  in  1830,  by  a  vote  of  123 
to  -19  impeached  Peck,  and  James  Buchanan, 
afterwards  President  of  the  United  States, 
and  Mr.  Storrs,  of  New  York,  were  appointed 
prosecutors  on  behalf  of  the  House.  On  a 
trial  before  the  Senate  the  vote  stood  for  im- 
peachment, 21 ;  against  impeachment,  22. 
On  this  trial  Mr.  Buchanan  in  one  of  his 
speeches  said  :  "I  will  ventui'e  to  predict  that 
whatever  may  be  the  decision  of  the  Senate 
upon  this  impeachment,  Judge  Peck  has  been 
the  last  man  in  the  United  States  to  exercise 
this  [)ower,  and  ]Mr.  Lawless  has  been  its  last 
victim."  This  ex[)ressed  the  public  opinion 
then  prevailing  al)Out  the  exercise  of  this 
l)()wer.  Fi'om  the  trial  of  Shi|)pen  in  1801: 
no  judge  except  Peck  had  attempted  to 
exercise  such  i)Ower.  A  full  repoi't  of  the 
Peck  case  is  given  in  the  Appendix  "  II." 

The  trial   of  this  case  created    a  profound 


32  THE    LAW    OF    CONSTRUCTIVE    CONTEMPT. 

sensation  in  the  whole  countiy,  on  account 
of  the  fundamental  principle  of  liberty  in- 
volved in  it,  and  the  eminence  of  the  parties 
en<>aged  in  it.  Judge  Peck  escaped  convic- 
tion more  because  many  senators  believed  he 
sincerely  thought  he  had  jurisdiction  to  pun- 
ish Mr.  Lawless  in  the  way  he  did,  than  upon 
the  ground  that  he  actually  had  such  powei'. 
And  at  the  same  session  of  Congress  Mr.  Bu- 
chanan introduced,  and  had  passed,  a  statute, 
approved  March  2,  1831,  which  is  reported  in 
full  in  the  Peck  case  in  the  Appendix.  That 
act  was  vei-}^  much  like  oui's,  and  limited  the 
Federal  courts  to  certain  specified  classes  of 
contempts,  and  no  other.  Virginia  followed 
in  April,  1831,  with  an  act  from  which  ours  is 
literally  copied.  Other  States  soon  followed 
with  similar  statutes,  and  four  years  after- 
wards our  Legislature  in  1835,  though  up  to 
that  time  no  couil  in  the  State  had  attempted 
to  go  beyond  the  statute  of  1825,  but  to 
make  assurance  doubly  sure,  however,  enacted 
the  contempt  statute  which  has  been  in  full 
force  ever  since,  and  put  it  in  the  Revision  of 
1835  under  the  head  "  The  Courts  — Judicial 
Power."  This  statute  will  be  found  in  full 
in  Appendix  "  I;  "  the  sections  being  num- 
bered as  they  are  in  the  Revised  Statutes  of 
1899.  The  enactment  of  this  statute  was 
unquestionably  the  result  of  the  Peck  trial, 
and  was  intended  to  put  an  end  to  any  claim 
of  our  courts  in  following  Judge  Peck's  prec- 
edent for  the  exercise  of  the  general  power 
to  punish  for  cbntempt  confei'red  b}'  the  com- 
mon law. 


TIIK    LAW    OF    CONSTRUCTIVE    CONTEMPT.  33 

THIRD    EPOCH. 

The  liislory  of  this  question  from  1835  to  187/5,  fohen  the 
Constitution  now  in  force  ivas  adopted. 

In  1840  and  1844  the  Congress  of  the 
United  States,  with  the  approval  of  the  Presi- 
dent, to  emphasize  the  protest  of  the  people 
against  the  exei'cise  of  unwarranted  power, 
refunded  the  fines,  witli  interest,  which  had 
been  imposed  on  Lyon,  Cooper  and  Haswell, 
under  the  Sedition  Law,  at  the  same  time 
condemning  the  law  under  which  they  had 
been  convicted,  notwithstanding  the  fact  that 
the  several  courts,  sitting  in  those  cases,  had 
upheld  its  constitutionality. 

The  contempt  statute  of  1835  went  into  the 
Revised  Statute  of  1845  without  change, 
under  the  head  "  The  Courts:  Judicial 
Poioer.^''  In  1847  this  statute  was  the  sub- 
ject of  judicial  interpretation  in  Hari-ison  v. 
Missouri,  10  Mo.  687.  Harrison  was  fined 
one  hundred  dollars  by  the  Circuit  Court  of 
Saline  County  for  a  breach  of  the  peace,  and 
for  noisy  and  disorrlerly  conduct  in  the  pres- 
ence and  hearing  of  the  court,  directly  tend- 
ing to  disturb  its  |)roceedings,  and  to  impair 
the  respect  due  its  authority.  At  the  same 
term  the  court  remitted  forty  dollars  of  the 
fine,  and  issued  an  execution  for  the  remainder, 
sixty  dollars.  At  the  next  term  of  court 
Harrison  moved  to  quash  this  execution,  on 
the  ground,  among  others,  that  the  fine  ex- 
ceeded the  maximum  fixed  by  law  in  such 
cases;  and  thereupon  the  court  remitted  ten 
dollars  more,  leaving   the  fine  fifty   dollars. 

3 


34  THE    LAW    OF    CONSTRUCTIVE    CONTEMPT, 

Harrison  appealed,  and  made  the  point  that 
the  fine  was  void,  and  that  the  court,  after  the 
close  of  the  term  at  which  it  was  imposed, 
had  no  power  to  change  the  amount  to  briii^ 
it  within  the  limitations  of  the  statute.  The 
court  after  quoting  a  section  of  the  statute 
of  1845,  which  is  the  same  as  1617  of  the 
Kevised  Statutes  of  1899,  said,  on  this  point: 
"  Thus  it  will  be  seen  that  the  Circuit  Court 
has  the  power  to  punish  summarily  by  fine  and 
imprisonment  for  a  contempt  committed  in  its 
presence ;  but  the  fine  shall  not  exceed  fifty 
dollars,  nor  the  imprisonment  ten  days.  In 
imposing  the  fine  of  one  hundred  dollars  on 
the  defendant,  the  Cii'cuit  Court  clearly  ex- 
ceeded its  powers.  This  was  remedied  or 
corrected  in  part  by  the  exercise  of  an  un- 
questioned right  of  the  court  to  amend  or 
vacate  its  judgment  at  any  time  during  the 
continuance  of  the  term,  at  which  the  judg- 
ment, amended  or  set  aside,  was  rendered. 
But  after  the  judgment  was  first  amended  by 
the  remission  of  forty  dollars,  the  fine  against 
the  defendant  still  exceeded  the  power  of  the 
court.  The  judgment  is  not  absolutely  void, 
for  the  court  had  i)ower  to  punish  foi-thecon- 
tempt,  and  thus  had  jurisdiction,  but  errone- 
ous, because  the  fine  exceeded  in  amount  the 
maximum  pr escribed  hy  statute.''''  The  court 
then  goes  on  to  hold  that  the  lower  court  had 
no  power,  at  a  subsequent  term,  to  reduce  the 
fine,  and  reversed  the  case  without  remandino- 
it,  thus  holding  the  whole  proceeding  void 
ah  initio. 


TJJE    LAW    OF    CONSTRUCTIVE    CONTEMTT.  35 

Attoi'Mcy-General  Stringfellow  did  not  i-aise 
the  point  of  the  constitutioiiiil  powet-  of  the 
legislature  to  pass  the  statute,  nor  did  the 
court.  The  judges  and  lawyers  of  18-47  be- 
longed to  the  generation  that  had  witnessed 
the  fierce  constitutional  controvei"sy  in  the 
Peck  case,  and  stood  near  enough  to  the  con- 
test in  Pennsylvania,  in  the  McKean  and 
Shippen  cases,  and  in  the  United  States,  in 
the  cases  arising  under  the  Sedition  law  of 
1798,  to  hear  their  echoes,  and  in  the  Harri- 
son case  there  was  absolute  acquiescence  by 
the  court,  and  the  lawj'^ers  engaged  in  the 
case,  in  the  legislative  power  to  pass  the  con- 
tempt statute,  and  the  court  rigorously  en- 
forced its  provisions  in  regard  to  the  fine. 

The  contempt  statute,  with  this  intei-preta- 
tion  of  it,  went  into  the  Revised  Statutes  of 
1855  and  1865  without  change,  and  in  the 
latter  year  a  new  constitution  was  adopted,  in 
which  were  incorporated  substantially  the 
provisions  of  the  Constitution  of  1820  in  re- 
gard to  the  distribution  of  the  powers  among 
the  three  co-ordinate  departments  of  the 
government  and  in  regard  to  the  legislative 
and  judicial  powers,  and  it  was  declared  that 
"  all  statute  laws  in  this  State,  now  in  force, 
not  inconsistent  with  this  constitution,  shall 
continue  in  force  until  they  shall  expire  by 
theii'  own  limitation,  or  be  amended  or  re- 
pealed hy  the  General  Astiembli/.''^ 

In  1866  the  contempt  statute  was  under 
examination  by  the  Sujjieme  Court  in  the 
matter  of  Green  Co.  v.  Rose,  38  Mo.  896.  In 
that  case  the  Probate  Court  of  Green  C-ountv 


3f)  THfc    LAW    OF    CONSTRUCTIVE    CONTEMPT. 

had  fined  Rose  one  Inindred  dollars  for  fail- 
ing to  make  settlement  as  curator  of  a  minor's 
estate,  according  to  the  order  of  the  court. 
The  Supreme  Court  quoted  Section  67,  p. 
542  R.  S.  1855,  which  is  the  same  as  Section 
1618  R.  S.  1899,  in  support  of  that  ruling. 
Thus  the  court  upheld  that  statute.  No 
question  about  its  constitutionality  was  raised 
or  discussed. 

FOURTH    EPOCH. 

The  History  of  the  Question  from  1875  to  1903. 

Then  comes  the  constitution  of  1875.  The 
contempt  statute  had  been  on  the  statute 
books  for  forty  years  under  the  head  of  **  The 
Courts:  Judicial  Power,"  in  the  Revisions  of 
1835, 1845  and  1855,  and  under  the  head  "The 
General  Powers  and  Duties  of  Courts,"  in 
the  general  statutes  of  1865,  and  if  any  lay- 
man, lawyer  or  judge  had,  in  that  forty  years, 
entertained  a  doubt  of  the  constitutionality  of 
that  statute,  his  opinion  is  not  recorded  so  far 
as  I  have  been  able  to  discover.  The  statute, 
introducing  the  common  law  as  heretofore 
given,  was  in  force  and  incorporated  in  the 
general  statutes  of  1865. 

In  the  light  of  this  history  the  constitution 
of  1875  was  written  and  adopted.  It  must  be 
assumed  that  the  members  of  that  convention, 
some  of  whom  were  the  most  eminent  lawyers 
and  statesmen  of  our  State,  were  familiar  with 
the  history  of  legislation"  in  the  State,  and 
fixed  the  limitation  upon  the  legislative  power 
so  as  to  eradicate  all  the  evils  in  that  connec- 
tion which  had  crept  into  our  system  of  laws. 
With  this  end  in  view  Article  4  was  inserted, 


Tin:  LAW  OF  CONSTKUCTIVK  CONTEMIT.    6 1 

vvhic-li  provides,  "  Thu  legislative  power,  safj- 
ject  to  the  limitations  herein  contained.,  shall 
be  vested  in  a  Senate  and  a  House  of  Repre- 
sentatives, to  he  styled  '  The  General  Assem- 
bly of  the  State  of  Missouri,'  "  and  then  follow 
many  specific  limitations  upon  that  power,  but 
among  them  we  find  none  in  regard  to  the  law 
of  contempt.  The  judicial  power  granted  to 
the  courts  is  in  these  words :  — 

"  The  judicial  power  of  the  State,  as  to  mat- 
ters of  law  and  equity,  except  as  in  this  Con- 
stitution otherwise  provided,  shall  be  vested 
in  a  Supreme  Court,  the  St.  Louis  Court  of 
A[)peals,  Circuit  Courts,  Criminal  Courts, 
Probate  Courts,  County  Courts  and  Municipal 
Corporation  Courts." 

Then  the  revision  of  the  statutes  in  1879 
was  made  and  the  contempt  statute  went  into 
it  without  the  slightest  change.  In  1883  the 
case  of  ex  parte  Renshaw  was  decided  by  the 
Supreme  Coui-t.  In  this  case  Renshaw  was 
ordered  by  the  Circuit  Court  of  Jackson 
County  not  to  remove  certain  fixtures  from  a 
room  named,  which  order  he  disobeyed.  After- 
wards the  court  ordered  him  to  restore  the 
fixtures,  which  he  failed  to  do  ;  whereupon 
the  court  fined  him  one  hundred  dollars  for 
contempt,  and  ordered  that  he  stand  com- 
mitted until  the  fine  was  paid,  and  fixtures  re- 
stored. The  Supreme  Court,  on  appeal,  cited 
sections  1055,  105(3  and  1059,  R.  S.  1879, 
which  are  the  same  as  sections  161(3,  1617  and 
1620,  R.  S.  1899,  and  treated  them  all  as  valid. 
The  court  held  that  under  Section  1059,  R.  S. 


38  THE    LAW    OF    CONSTRUCTIVE    CONTEMPT. 

1879  (Sec.  1620,  R.  S.  1899),  the  court  had 
the  power  to  imprison  the  defendant  until 
he  complied  with  the  order  of  the  court,  but 
held  the  fine  improperly  imposed,  saying: 
"  No  fine  for  a  criminal  contem-pt  can  exceed 
fifty  dollars^''''  and  the  judgment  of  the  court 
helow  toas  modified  so  as  to  release  defendant 
from  the  fine  but  that  he  be  imprisoned  until 
he  should  comply  with  the  order  of  the  court 
to  restore  the  fixtures.  Mr.  Justice  Sherwood 
concurred  in  the  construction  of  the  several 
sections  of  the  statute,  but  held  that  Section 
1056  R.  S.  1879  (Section  1617,  R.  S.  1899), 
limiting-  the  power  of  the  court  in  the  punish- 
ment of  criminal  contempt  was  an  invasion  of 
the  judicial  power,  conferred  on  the  courts  by 
the  Constitution,  But  the  majority  of  the 
court,  and  the  counsel  in  the  ca«e,  did  not 
raise  or  discuss  the  constitutionality  of  this 
statute,  but  the  court,  in  most  emphatic  terms, 
recognized  its  validity  and  enforced  its  pro- 
visions. This  case  was,  as  to  the  extent  of 
the  fine,  cited  with  approval,  by  the. Supreme 
Court  in  ex  parte  Baenninghousen,  91  Mo. 
305,  and  thus  interpreted,  the  contempt  statute 
went  into  the  Revisions  of  1889  and  1899.  -It 
may  be  added  that  the  Circuit  Courts  for  over 
sixty  years,  and  the  Court  of  Apj)eals  for 
twenty-one  years,  have  followed  the  contempt 
statutes,  and  recognized  them  as  valid  without 
question. 

In  the  light  of  this  historical  sketch  of  the 
question  in  England  and  America  I  will  now 
proceed   to  examine  the  main  points  made  by 


TIIK    LAW    OF    rONSTUUCTIVK    CONTEMPT.  39 

the  Supreme  Coiiil  in  the  Shepheni  case  wliieh 
I  combat. 

I. 

Jurisdiction  to  punish  for  contempt  for  the  publication  of 
an  alleged  libel  was  not  co)tferred  on  this  court  by  the 
Constituti'in  of  1820. 

Any  pi'iiici[)le  of  tlie  common  law,  that  was 
i'e[)iiofnant  to  the  [)rovi8ions  of  this  Constitu- 
tion, was  never  in  foi'ce  in  this  State.  The 
same  instrument  that  conferred  the  "  judicial 
power"  on  the  court  also  provided  for  free- 
dom of  speech  and  of  the  press,  and  that  "  in 
all  prosecutions  for  libels,  the  truth  thei'eof 
may  be  given  in  evidence,  and  the  jury  may 
determine  the  law  and  the  facts  under  the 
direction  of  the  court."  Even  without  this 
provision,  according  to  the  final  opinion  of 
Lord  Erskine,  it  is  doubtful  if  the  court 
would  have  had  power,  under  the  common  law 
then  in  force  in  Missouri  by  virtue  of  the  Act 
of  1816,  to  punish  parties,  as  for  a  contempt, 
for  libelous  publications  on  the  courts  or  their 
judges  and  we  must  determine  what  was  in- 
tended by  the  insertion  of  this  provision  in 
the  Bill  of  Rights,  and  in  this  discussion  the 
history  of  the  struggle  for  the  crystallization 
of  that  principle  into  law  first,  and  then  into 
the  Constitution,  must  be  considered.  Among 
the  English-speaking  people  the  word  "  pre- 
rogative "  has  always  been  hateful,  and  every 
attempt  on  the  part  of  the  goveinment  to 
punish  for  contem[)t  of  itself  or  a  judge  to 
punish  for  contempt  of  himself  has  always  met 
the  fiercest  opposition,  especially  in  our  own 
country.     This  opposition  has  grown  out  of 


40       THE  LAW  OF  constkuctivp:  contempt. 

the  methods  of  exercising  jurisdiction  in  such 
cases.  It  has  been  regarded  by  the  people  as 
an  exercise  of  a  kind  of  prerogative  for  the 
government  itself  to  determine  when  its  action 
was  unduly  criticised,andespecially  fora  judge 
to  decide  whether  his  action  was  unduly  held 
up  to  public  animadversion.  The  people  have, 
for  one  hundred  and  fifty  3'ears,  held  that,  in 
such  cases,  there  was  too  much  of  thepei'sonal, 
though  partaking  in  a  degree  of  the  official, 
to  justify  the  government  on  the  one  hand 
and  the  judge  on  the  other  becoming  the  jury 
in  its  or  his  own  case.  The  government  and 
the  court,  as  entities,  have  no  sentient  exist- 
ence, and  it  is  only  through  their  administra- 
tors they  can  be  attacked,  and  when  thus 
attacked  the  attack  has  a  personal  as  well  as 
an  official  })hase,  and  no  matter  what  the 
theory  of  such  a  proceeding  may  be,  in  the 
public  mind  there  is  and  always  has  been  and 
always  will  be  an  intuitive  feeling  that  the 
maxim  "  no  man  should  be  a  judge  in  his  own 
cause"  is  violated  when  the  government 
undertakes  to  prevent  any  one  from  criticis- 
ing itself,  or  a  judge  brings  a  citizen  before 
him  for  trial  on  the  process  of  attachment  for 
contempt  of  the  court  over  which  he  presides. 
Thus  the  Alien  and  Sedition  Laws  of  1798 
aroused  the  fiercest  opposition,  and  the  trials, 
under  these  laws,  on  account  of  this  opposi- 
tion, had  a  profound  influence  on  the  growth 
and  development  of  our  institutions.  And 
thus  the  trials  for  contempt  of  court  by  news- 
paper publications  have  given  rise  to  some  of 


Tin:  LAW  OF  CONSTKLCTIVE  CONTEMIT.    41 

the  fiercest  controversies,  which  iiave  left 
their  lasting"  impression  iij^on  onr  laws  and 
civilization.  But  in  waging  these  conflicts 
the  people  have  never  fought  for  unrestrained 
criticism  and  license,  but  the  battle  on  their 
part  has  been  waged  along  other  lines.  The 
battle  has  been  about  the  manner,  rather  than 
the  matter  of  the  jurisdicti<ni  attempted  to  be 
exercised.  Those  who  opposed  the  Alien  and 
Sedition  laws  did  not  deny  the  right  of  the 
government  to  protect  itself  against  unjust 
and  pernicious  attacks,  but  they  did  deny 
the  right  of  the  national  government  to  pass 
and  enforce  such  laws,  claiming  that  it  was 
the  sole  province  of  the  States  to  provide  for 
vindication  in  such  cases.  Those  who  op- 
posed i:)roceedings,  based  on  attachment  for 
contempt  of  court  for  newspaper  publications, 
did  not  deny  that  courts  ought  to  be  pi-otected 
against  unjust  and  malicious  criticism,  but 
they  did  deny  the  proj)riety,  if  not  the  right 
of  the  judge  to  try  any  issue,  in  which  his 
personalit}'  must,  of  necessity,  more  or  less 
enter,  and  which,  they  felt,  can  but  influence 
his  decision.  This  objection,  however,  applies 
onl}^  where  the  contempt  proceeding  is  for 
criticism  of  the  judge  by  print,  writing  or 
picture,  and  does  not  apply  to  the  enforce- 
ment of  the  orders  of  the  court,  for  in  this 
the  personality  of  the  judge  does  not  enter 
in  the  slightest  degree,  and  hence,  personal 
bias  in  such  cases  can  have  no  apj^reciable  in- 
fluence over  the  decision  of  a  just  judge. 
Lord  Erskine,  at  the  close  of  his  great  career, 


42  THE    LAW    or    CONSTRUCTIVE    CONTEMPT. 

gave  it  as  his  opinion  that  there  ought  to  be 
a  jury  trial  when  a  person  is  charged  with 
Hbeling  a  court  or  judge;  and  Lord  Camp- 
bell, one  of  the  Chief  Justices  of  England, 
in  a  note  to  the  case  of  Kex  v.  Almonds 
Wihn.  Op.  243,  3rd  Volume  of  his  Lives  of 
the  Lord  Chief  Justices,  190,  sa3^s,  "  En  con- 
sequence of  the  resignation  of  Sir  Fletcher 
Norton,  who  as  Attorney-General  had  made 
the  motion,  it  (the  Almond  case  for  con- 
tempt) was  dropped  after  cause  shown  while 
the  court  was  considering  its  judgment;  and 
although  there  can  be  no  doubt  as  to 
the  power  to  proceed  by  attachment  in 
such  a  case,  —  if  a  prosecution  for  a  libel 
on  judges  be  necessary,  — the  preferable 
course  is  to  proceed  by  information  or  in- 
dictment, so  as  to  avoid  placing  them  in 
the  invidious  situation  of  deciding  where 
they  may  be  supposed  to  be  parties."  Lord 
Campbell  here  but  expresses  the  universal 
opinion  of  mankind.  This  feeling  of  the  peo- 
ple had  been  intensified  and  made  absolutely 
predominant  by  the  Revolutionary  struggle 
in  this  country,  and  by  the  contest  waged  by 
the  people  against  the  exercise  of  all  forms  of 
prerogative  and  arbitrary  pow^er  by  go  vein- 
mental  agencies,  and  in  an  emphatic  degree 
had  the  opposition  to  a  press  censorship  been 
made  strong  and  robust,  so  that  when  in  1820, 
thirty-seven  years  after  the  close  of  the  war 
of  Independence,  twenty  years  after  the  end 
of  the  great  struggle  against  the  Alien  and  Sedi- 
tion laws,  and  sixteen  years  after  the  Senate 


THi:  LAW  OF  COXSTRUCTIVK  CONTKMl'T.     43 

of  Pennsylvania  l)y  a  vote  of  tliirtecn  t(j 
eleven  for  tlie  conviction  of  Jndgc  Shippon 
(who  had  grown  gray  in  the  service  of  his 
conntry),  for  a  high  crime  in  pnnishing  Passa- 
more  for  a  [)uijHcation  in  a  newspapei* ;  with 
the  memories  of  the  struggle  of  the  half 
century  precerling  that  time  in  England  and 
Amei'ica  foi-  the  rights  of  men  fresh  in  their 
minds,  the  people  of  this  State  came  to 
write  their  first  Constitution,  they  seemed  to 
be  determined  on  one  thing,  and  that  was,  to 
abolish  press  censorship  for  once  and  all,  and 
place  the  fi'eedom  of  speech  and  of  the  |)ress 
on  an  enduring  basis.  And  they  wi'ote  in 
their  Bill  of  Pights  this  stalwai't  language  : 
"That  the  free  communication  of  thoughts 
and  opinions  is  one  of  the  invaluable  rights  of 
man,  and  that  every  person  may  think,  write 
and  print  on  any  subject,  being  responsible 
for  the  abuse  of  that  liberty."  And  in  ordei' 
to  specif}^  how,  and  before  what  tribunal  such 
a  resi)onsibility  should  be  determined,  it  was 
added  :  "  And  in  all  prosecutions  for  libel  the 
truth  thereof  maj'  be  given  in  evidence,  and 
the  jury  may  determine  the  law  and  the  fact, 
under  the  direction  of  the  court." 

Was  that  clear  and  vigorous  language  in- 
tended by  the  framers  of  that  Constitution  to 
be  a  "■  limitation  of  the  judicial  power  "  of  the 
English  courts,  as  defined  by  Blackstone  be- 
fore our  Declaralion  of  Independence  was 
penned?  The  common  law  of  England  was 
in  force  here  only  by  virtue  of  a  statute  of  the 
Territorial  legislature  passed  in  1816,  and  that 


44    THK  LAW  OF  CONSTRUCTIVE  CONTEMPT. 

law  was  ill  force  so  far,  and  only  so  far  as  it 
was  not  I'epuf/ncmt  to  any  statute  of  the  Terri- 
tory^ and  by  Section  2  of  the  schedule  it  was 
declared,  "That  all  laws  now  in  force  in  the 
Territoiy  of  Missouri,  which  are  not  repug- 
nant to  this  Constitution  shall  remain  in  force 
until  they  shall  expire  by  their  own  limitation, 
or  he  altered  or  repealed  hy  the  General  As- 
sembly.'''' Do  the  words  "  the  judicial  power," 
as  used  in  that  Constitution,  include  the  power 
of  the  courts  to  punish  by  the  process  of 
attachment  for  contempt,  for  an  alleged  libel 
upon  the  court,  the  judges,  the  parties  to  any 
suit,  or  th(i  oflScers  of  the  court ;  or  is  that 
common  law  rule  repugnant  to  the  Constitu- 
tion? I  have  not  a  shadow  of  a  doubt  but  that 
it  is ;  that  the  framers  of  the  Constitution  of 
1820  and  the  people  intended  to  prohibit  the 
exercise  of  such  a  power,  and  thought  they 
had  done  so.  They  never  dreamed  that 
Blackstone  and  the  English  judges  would  be 
quoted  as  authority  for  the  courts  to  bring 
before  them,  and  try  without  indictment  or 
information,  and  without  the  intervention  of 
a  jury,  a  citizen  for  criticising  the  courts  in 
the  press,  even  though  such  criticism  might 
be  libelous,  thus  becoming  judges  in  their  own 
causes,  and  compelling  parties  to  give  evi- 
dence against  themselves,  and  becoming  the 
ti'iers  not  only  of  the  law,  but  also  of  the  fact 
in  a  libel  case.  I  feel  sure  that  at  that  time 
if  the  exercise  of  such  a  power  had  been  at- 
tempted by  the  courts,  it  would  have  been 
as  fiercely  resisted  as  the  exercise  of  such  a 


TIIK    LAW    OF    CONSTRUCTIVK    f'ONTEMl'l.  i^) 

power  by  Chief  Justices  ]SrcKean  and  Shi[)|)en 
were  I'esisted  in  Pennsylvania  only  a  few 
years  before.  And  the  fact  that  no  Missouri 
judge,  in  the  early  days  of  the  republic,  at- 
tempted to  exercise  such  a  power  in  such  a 
case,  though  many  occasions  and  provoca- 
tions for  its  exei'cise  were  not  wanting,  shows 
that  not  only  the  [)eople,  but  the  Bench  and 
Bar  then  did  not  claim  such  jurisdiction  foi- 
the  courts.  But  this  view  rests  not  alone 
uj)on  theory.      Thei'e  is  authority  for  it. 

In  1875  the  Supreme  Court  of  Illinois  had 
this  very  cpiestion  before  it  in  Storey  v.  Peo- 
ple, 79 '111.  45.  The  Chicago  Times  had  re- 
flected upon  the  action  of  the  grand  jury  in 
finding  an  indictment  against  the  editor  of 
that  pa[)er  and  for  this  he  was  attached  for 
contempt  of  the  court.  After  referring  to  the 
doctrine  laid  down  by  Blackstone,  the  Su- 
preme Court  said  :  "  But  the  law  in  relation 
to  contempt  has  never  been  held  in  any  case 
decided  by  this  court  to  be  so  indefinitely 
broad  as  it  is  thus  stated  by  Blackstone.  Our 
Constitution  and  statutes  certainly  affect  this 
question,  and  it  is  only  in  determining  pre- 
cisely  how  far  they  do  so,  that  we  have  any 
difficulty.  Courts,  however,  possess  cei-tain 
common  law  powers,  subject  to  modifications 
that  ma}'  have  been  imposed  by  our  ConMi- 
tution  and  statutes,  among  which  is  included 
that  of  i)unishing  for  contempt."  The  court 
goes  on  to  say  that  the  law  of  libel  at  com- 
mon law  left  the  jury  to  determine  whether 
the  defendant  was  guilty  of  the  publication 


46  THE    LAW    OF    CONSTRUCTIVE    CONTEMPT. 

alone  ;  but  the  question,  whether  the  pubHca- 
tion  was  libelous,  was  for  the  court,  and  it 
was  not  permissible  to  show  by  evidence  that 
the  publication  was  true,  or  to  show  the 
motives  of  the  publisher,  and  under  the  com- 
mon law,  therefore,  whether  the  party  charged 
was  tried  by  a  jury  or  proceeded  against  sum- 
marily as  for  contempt,  the  only  question  of 
fact  was  whether  he  was  guilty  of  the  publi- 
cation, and  then  it  was  for  the  court  to  say 
whether  the  publication  was  libelous  or  not. 
The  court  continuing  along  this  line  of  argu- 
ment, added,  "  In  this  State  (Illinois)  how- 
ever, our  own  Constitution  guarantees  that 
every  person  may  fully  speak,  write  and  pub- 
lish on  all  subjects,  being  responsible  for  the 
abuse  of  that  liberty ;  and  in  all  trials  for 
libel,  civil  or  criminal,  the  truth,  when  pub- 
lished with  good  motives  and  for  justifiable 
ends,  shall  be  a  sufficient  defense.  This  lan- 
guage, plain  and  explicit  as  it  is,  cannot  be 
held  to  have  no  application  to  the  courts,  or 
those  by  whom  they  are  conducted."  The 
court  quotes  with  approval  the  following  lan- 
guage from  the  Stewart  case,  3  Scam.  402 
(also  an  Illinois  case)  :  "  If  a  judge  be  libeled 
by  the  public  press,  he  and  his  assailant 
should  be  placed  on  equal  grounds,  and  their 
common  arbitershould  beajuryof  the  county." 
The  basis  forthe  attachment  for  contempt  in  the 
Stewart  case  was  a  severe  reflection  on  a  judge 
in  a  newspaper  duringthependencyof  a  murder 
trial.  In  the  Storey  case  the  court  concluded 
as  follows :   "  When  it    is  conceded  that  the 


TJli;    LAW    OF    CONSTRUCTIVE    CONTKMl'T.  17 

guaranty  of  this  clause  (freedom  of  press)  of 
the  Constitution  extends  to  iro7'dt<  spoken  or 
published  in  regard  to  judicial  conduct  and 
character,  it  would  seem  necessarily  to  folio ir 
that  the  defendant  has  the  rigid  to  make  a 
defense  which  can  only  he  properly  tried  by 
jury,  and  irhich  the  judge  of  a  court,  espe- 
cially if  he  himself,  is  the  subject  of  thf 
publication,  is  unfitted  to  try.^'' 

Upon  reason  and  authority,  therefore,  I 
conclude  that  the  common  law  power  of  the 
judiciary,  as  it  existed  in  England  prior  to  our 
Revolutionary  struggle,  to  try  without  the 
intervention  of  a  jury,  and  punish,  as  for  a 
contem[)t,  a  person,  for  a  libelous  publication 
upon  the  court,  judges,  parties,  witnesses  or 
officers,  was  not  in  force  in  Missouri  after  the 
ado|jtion  of  the  Constitution  of  1820. 

TI. 

The  v.-ords,  "  The  Legislative  Power''  as  used  in  the  Con- 
stitution of  1S20  authorized  the  enactment  of  the  con- 
tempt statute. 

At  this  point,  it  behooves  me  to  examine 
the  rule  our  owmi  Supreme  Court  has  laid 
down  and  enforced  by  which  it  has  always 
detei-mined  whethei*  a  statute  be  constitutional 
or  not.  That  court,  in  State  v.  Able,  65  Mo. 
357,  very  clearly  sete  out  the  rule  which 
should  govern  the  court  in  determining  the 
constitutionality  of  a  statute  in  this  language  : 
"  It  may  be  observed  as  preliminary  to  the 
consideration  of  this  subject  that  when  we  are 
asked  to  declare  an  act  of  the  legislatui-e  un- 
constitutional, which  has  been  passed  with  all 


48  THE    LAW    OF    CONSTRUCTIVE    CONTEMPT. 

the  forms  and  ceremonies  required  to  give  it 
force,  the  question  must  be  approached  with 
great  caution,  and  considered  with  the  utmost 
care  and  dehberation.  The  nullit}^  and  inva- 
Hdity  of  such  a  law  must  appear  beyond  a 
reasonable  doubt  before  we  can  pronounce  it 
void.  It  has  been  held  by  this  court  that  no 
rule  is  better  established- than  that  acts  of  the 
legislature  are  presumed  to  be  constitutional, 
and  till  the  contrary  i^lainly  appears,  and  it  is 
only  when  they  manifestly  infringe  on  some 
provision  of  the  Constitution  that  they  can  be 
declared  void  for  that  reason.  In  case  of 
doubt,  every  possible  presumption,  not  di- 
rectl}^  and  clearly  inconsistent  with  the  lan- 
guage and  subject-matter,  is  to  be  made  in 
favor  of  the  constitutionality  of  the  act 
(43  Mo.  385;  48  Mo.  468).  It  has  been 
well  said  in  the  case  of  Brown  v.  Buzan  (24 
Ind.  197)  '  that  the  legislature  is  ])eculiarly 
under  the  control  of  the  popular  will.  It  is 
hable  to  be  changed  at  short  intervals  by 
elections.  Its  errors,  therefore,  can  be  quickly 
cured.  The  courts  are  more  remote  from  the 
people.  If  we,  by  following  our  doubts  in 
the  absence  of  clear  convictions,  shall  abridge 
the  just  authority  of  the  legislature,  there  is 
no  remedy  for  six  years.  Thus,  to  whatever 
extent  this  coui't  might  err  in  denying  the 
rightful  authority  of  the  law-making  power, 
we  \vould  chain  that  authority  for  a  long 
period  at  our  feet.  It  is  better  and  safer, 
therefore,  that  the  judiciary,  if  err  it  must, 
should  not  err   in    tliat  direction.     If  either 


THE    LAW     OK    r<  )NSTiaCTI  VE    CONTEMPT.  49 

dopartinent  of  (he  ^^ovci  nineiit  may  slig-htly 
overstei)  the  limits  of  itsconstitutional  power, 
it  slioiild  be  that  one,  whose  official  life  would 
soonest  end.  It  has  the  least  motives  to  usurp 
power  not  given,  and  the  people  can  sooner 
relieve  themselves  of  its  mistakes.  Herein 
is  a  sufficient  reason  that  the  courts  should 
never  sti'ike  down  a  statute,  unless  its  conflict 
with  the  Constitution  is  clear.  The  judiciai'y 
ought  to  accord  to  the  legislatui"e  as  much 
purity  of  purpose  as  it  would  claim  fo!'  itself,  as 
honest  a  desii*e  to  obey  the  Constitution,  and 
also  a  high  capacity  to  judge  of  its  mean- 
ing. '  "  This  case  has  been  quoted  by  the 
Supreme  Court  many  times  since  with  ap- 
proval, and  as  late  as  189J:,  in  the  Copeland 
case,  126  ]Mo.  435.  The  language  here  is  so 
explicit  and  clear  that  nothing  can  be  added. 
The  rule  of  construction  of  the  powers  of  a 
State  legislature  is  the  reverse  of  that  applied 
to  Congress.  The  latter  can  exercise  no 
power  except  that  which  is  delegated  to  it, 
while  a  State  legislature  is  clothed  with  all 
legislative  j)ower  not  denied  to  it  in  the  State 
and  national  constitutions.  In  England  the 
Parliament  is  said  to  be  omnipotent  in  its 
legislative  capacity.  It  can  dethrone  and 
even  behead  a  king,  and  set  up  another  foi'm 
of  government,  as  it  did  in  1640-50,  or  de- 
throne the  legitimate  reionino-  monarch  and 
clothe  some  one  else  with  the  executive 
power,  as  it  did  in  1688-9.  It  can  abolish 
the  courts,  and  reorganize  the  judiciai'y  upon 
any  basis  it  sees  proper,  as  was  done  in  many 


50  THE    LAW    OF    CONSTRUCTIVE    CONTEMPT. 

acts,  especially  in  the  Judiciary  Act  of  1873. 
It  even  has  judicial  powers,  and  has  often 
exercised  such  ])owers  in  passing  bills  of 
attainder  and  the  like.  It  has  absolute  power 
to  make  and  unmake  all  laws  of  the  kingdom. 
The  American  Colonies  claimed  the  same 
power  for  their  assemblies,  as  representatives 
of  their  will,  and  if  we  appeal  to  the  common 
law  for  a  definition  of  "  the  legislative 
power,"  as  it  existed  in  1820,  we  will  find 
much  more  latitude  for  our  legislative  depart- 
ment than  can  be  found  for  the  judicial. 
Blackstone,  speaking  of  this  power,  says: 
"  The  power  and  jurisdiction  of  Parliament, 
says  Sir  Edward  Coke,  is  so  transcendent  and 
absolute,  that  it  cannot  be  confined,  eithei* 
for  causes  or  persons,  within  any  bounds. 
*  *  *  It  hath  sovereign  and  uncontrolla- 
ble authority  in  the  making,  confirming,  en- 
larging, restraining,  abrogating,  repealing, 
reviving  and  expounding  of  laws,  concerning 
matters  of  all  possible  denominations,  eccle- 
siastical or  temporal,  civil,  militai-y,  maritime, 
or  criminal :  this  being  the  ])lace- where  that 
absolute  despotic  power,  which  must  in  all 
governments  reside  somewhere,  is  intrusted 
by  the  Constitution  of  these  kingdoms." 
But  the  legislative  power,  under  State  con- 
stitutions, is  not  co-extensive  with  that  of 
Parliament,  but  is  limited  in  several  respects 
by  the  State  Constitutions  and  the  I^ational 
Constitution.  But  within  these  limitations, 
the  legislative  power  of  a  State  legislature  is 
as  unbounded  as  that  of    Parliament.     Now 


THE    LAW    OF    rONSTRUCTI VE    COXTEMI'T.  j1 

let    iiB  see  if   there  is  any   limitation  of    the 
"  legislative  power  "  over  the  snbjeet  of  con- 
tempt of  court  c(jntained  in  the  Constitution, 
eitiier  in  direct  terms  or  by  implication.     Mr. 
Justice     Marshall,   in   his  opinion,   bases    his 
argument  that  the  legislative  power  was   so 
limited,  solely  and  alone  upon  the  article  of 
the  Constitution  which  is  the  same  now  as  it 
was  in  the  Constitution  of   1820,  distributing 
the  powers  of   government  among  the  three 
departments  of  that  government.     That  arti- 
cle established  the  three  co-ordinate  branches, 
the    legislative,  executive    and  judicial,  upon 
which    it    confei's    "  the    powers    of     govern- 
ment," ''  each  of  which  shall  be  confided  to 
a  separate   magistracy;"   and    no- person    or 
collection  of  persons,  charged  with  the   exer- 
cise of  powers  properly  belonging  to   one   of 
those  departments^  shall  exercise  any  power 
properly  belonging  to  either  of  the  others,  ex- 
cej3t   in    the    instances    hereinafter    expressly 
directed    or  permitted."     The  italicized  sen- 
tence  is  the  sole  foundation   upon  which  the 
court   leases   its   judgment    in    the    Shepherd 
case . 

Now,  in  all  candor,  I  ask  what  judicial 
j)ower,  which  was  confided  to  the  courts,  did 
the  legislature  exercise  in  the  enactment  of 
the  contempt  statute?  To  say  that  in  that 
enactment  "judicial  power"  was  exercised 
by  the  legislatuie  would  be  a  perversion  of  the 
meaning  of  that  tei-m  as  construed  among  all 
men.  Webster  defines  ''judicial"  thus: 
"  let.   Pertaining  or  appropriate  to  courts  or 


52    THE  LAW  OF  CONSTRUCTIVE  CONTEMPT. 

to  a  jiKlg-e  tliereof,  as  '  judicial  power,'  '  a 
judicial  miud.'  2d.  Practiced  or  employed 
in  the  adininisti-ation  of  justice,  as  '  a  judicial 
jjioceeding-.'  3d.  Proceeding-  from  a  court 
of  justice,  a  judicial  determination  or  order  of 
i\  court,  as  '  a  judicial  sale.'  " 

The  judicial  power,  as  exercised  in  England 
and  the  United  States,  and  in  all  civilized 
countiies,  is  that  power  which  can  be  exer- 
cised by  courts  only  in  a  specific  case  with 
named  parties  properly  before  it,  according 
to  the  forms  of  law,  and  when  the  points 
})i'esented  in  such  a  specific  case  are  disposed 
of,  the  power,  for  further  action,  ceases. 
The  courts  cannot,  and  never  did  act  on  an 
abstract  question,  except  some  of  the  con- 
stitutions of  the  Amei'ican  States  provide 
for  the  submission  of  such  questions  by 
the  executive  and  legislative  branches  of 
the  government  to  the  courts  for  their 
opinions,  and  our  Constitution  of  1865  so 
provided  ;  but  we  omitted  that  provision  in  the 
Constitution  of  1875,  so  that  in  our  State  the 
courts  are  not  clothed  with  the  judicial  power 
to  act,  unless  a  specific  party  presents  a  spe- 
cific point  for  judgment,  according  to  the 
forms  prescribed  by  law.  No  one  will  pre- 
tend that  a  pai'ty,  not  even  the  governor,  or 
legislature,  or  both  combined,  could  call  into 
exercise  the  judicial  power  of  a  court  by  de- 
manding an  o|)inion  on  an  abstract  question. 
To  call  into  exercise  such  a  power  there  nuist 
be  a  concrete  case  before  the  court,  and  in 
disposing  of  it  the  court  exercises  judgment 
and  discretion  and  renders  judgment. 


THE  LAW  or  CONSTRUCTIVI-:  CONTKMI'T.     03 

All  the  courts  have  i^one  so  far  in  liinitin*; 
the  exercise  of  judicial  power  that  when  they 
dispose  of  the  questions  presented  I)ythe  rec- 
ords in  given  cases,  any  further  action  or 
opinion  is  universally  regarded  and  treated 
as  ohitfir  dictiuti^  that  is,  not  judicial,  and 
as  the  personal  expression  of  the  judge, 
and  if  the  court  acts  in  a  ease  not 
properly  before  it  according  to  the  forms 
of  law,  such  act  will  be  set  aside,  and  in 
many  cases  treated  as  absolutely  void  ah 
Initio^  and  not  binding  on  the  court  in  col- 
lateral proceedings  in  regard  to  the  same  mat- 
ter. But  wo  are  not  left  to  our  own  meaning 
on  this  pro[)osition.  Cooley  (Con.  Lim.  110) 
on  the  subject  of  legislative  and  judicial  power 
says,  "The  legislative  power  we  understand 
to  be  the  authority  to  make  laws  under  the 
constitution,  and  to  alter  and  repeal  them. 
Laws,  in  the  sense  in  which  the  word  is  here 
employed,  are  rules  of  civil  conduct,  or  stat- 
utes which  the  legislature  has  prescribed, 
and  the  difference  between  the  de[)ai-tments 
undoubtedly  is  that  the  legislative  make.<,  the 
executive  executes,  and  the  judiciaty  co^is^rwes 
the  law.  And  it  is  said  that  that  which  dis- 
tinguishes a  judicial  from  a  legislative  act  is 
that  one  is  a  determination  of  what  the  exist- 
ing law  is,  in  relation  to  some  exist i fig  t/n'ny 
(dreadij  done  or  happened,  while  the  other  is 
a  predetermination  of  what  these  laws  shall  be 
for  the  regulation  of  future  cases,  falling 
under  its  provisions.  And  in  another  case  it  is 
said,  '  The  legislative  power  applies  only  to 


54    THE  LAW  OF  CONSTRUCTIVE  CONTEMPT. 

the  making  of  laws.'  On  the  other  hand  to 
adjudicate  upon  and  protect  the  rights  of 
individual  citi?;ens,  and  to  that  end  to  construe 
and  apply  the  laws  is  the  peculiar  province  of 
the  judicial  department.  The  court  decides 
upon  the  legality  of  claims  and  conduct,  and 
the  legislative  makes  rules  upon  which,  in 
connection  with  the  constitution,  those  deci- 
sions should  be  founded.  It  is  the  province  of 
the  judges  to  determine  what  is  the  law  upon 
existing  cases.  In  fine,  the  law  is  applied  by 
the  one  and  made  by  the  other.  To  do  the 
first,  therefore  to  compare  the  claims  of  par- 
ties with  the  law  of  the  land  before  established 
is,  in  its  nature,  a  judicial  act;  but  to  do  the 
last  —  to  pass  neiv  rules  for  the  regulation  of 
new  controversies  is,  in  its  nature,  a  legisla- 
tive act." 

But  the  legislature  might  violate  this  pro- 
vision of  the  constitution  in  another  way.  It 
might  have  undertaken  to  confer*'  the  judicial 
power"  on  some  officer  other  than  the  courts. 
If  the  legislature  had  provided  that  the 
courts  should  not  decide  contempt  cases  at  all, 
or  only  a  certain  class  of  them,  and  had  con- 
ferred such  power  on  the  clerk  or  sheriff 
of  the  court,  or  on  the  governor  or  other  ex- 
ecutive officer  of  the  State,  such  provision 
would  have  been  utterly  void  as  authorizing 
the  exercise  by  one  department  of  a  power 
that  properly  belongs  to  another.  But  no 
such  thing  was  attempted.  The  vei'y  first 
sentence  of  the  contempt  statute  declares  that 
"  Every  court    of  record  shall  have  power  to 


TllK    LAW    OK    f'OXSTKUCTIVE    CONTKMI'T.  55 

punish,  as  for  criminal  contcMnpt,  pcisons 
guilty  of  tlie  folhnvin*;-  acts,  and  no  otlicr." 
Is  that  not  unquestionably  a  rule  of  civil  con- 
duct pi'cscril)('d  hy  tiic  supreme  powei-  in  the 
State? 

]iut  it  is  claimed  the  lef^'islature  had  no  right 
to  inseit  in  tliat  statute  the  woi-ds  "  no  other," 
and  thus  deprive  the  courts  of  a  part  of  their 
former  jurisdiction.  But  it  cannot  be  main- 
tained that  in  inserting  those  words  it  exer- 
cised the  judicial  power  because  the  act  lacked 
all  the  elements  of  a  judicial  act,  and  of  course 
if  it  had  no  power  to  so  insert  them  the  de- 
privation of  power  must  be  found  in  some 
other  provision  of  the  Constitution,  l^o  other 
has  ever  been  pointed  out,  nor  can  it  be.  But 
these  restrictive  words,  taken  in  connection 
with  the  whol<^  contempt  statute,  and  other 
statutes,  do  not  deprive  the  courts  of  any 
judicial  power  or  jurisdiction  whatever. 
When  the  courts  try  a  case  of  libel  u[)on 
the  court  upon  an  information  or  indictment, 
or  at  the  civil  suit  of  the  judge  or  judges  f«)r 
damages,  and  a  jury  is  called  in  to  aid  in  the 
trial,  the  courts  exercise  the  "judicial  power" 
as  fully  as  if  they  acted  without  a  jury,  and 
those  remedies  are  left  to  the  courts  to  the 
fullest  extent  possible.  Hence  the  only  thing 
that  can  besaid  about  the  classes  of  contem[)t, 
not  einbiaced  within  the  statute,  is,  that  the 
act  simply  takes  away  from  the  courts  one 
method  of  pi-ocedure,  but  leaves  two  other 
methods  —  a  criminal  j)rosecution  in  the 
ordinary  course,   and    a  civil  action  fo!"  dam- 


56  THE    LAW    OF    CONSTRUCTIVE    CONTEMPT. 

ages,  by  which  they  are  left  free  to  exercise 
the  "judicial  power"  to  protect  society 
against,  and  redress  private  injuries  for  libel- 
ous publications.  So  I  conclude  that  the 
legislature,  in  the  enactment  of  the  contempt 
statute,  did  not  itself  exercise  the  "  judicial 
power,"  whi(;Ji  properly  belongs  to  the  courts, 
nor  did  it  deprive  the  courts  of  any  of  its 
judicial  power,  and  especially  did  not  confer 
nor  attempt  to  confer  judicial  power  on  any 
person  or  collection  of  persons  other  than  the 
courts. 

There  is  another  view  that  may  be  taken 
of  this  question,  and  that  is  the  common  law, 
which  is  made  the  basis  by  the  court,  upon 
which  the  judgment  in  the  Shepherd  case 
rests,  was  not  a  part  of  our  birthright,  but  is 
here,  and  is  kept  here  only  by  statutory  enact- 
ment. In  the  act  of  the  Territorial  legisla- 
ture of  1816,  introducing  the  common  law, 
and  which  was  in  force  when  the  Constitution 
of  1820  was  adopted,  it  was  specifically  pro- 
vided that  law  should  prevail  only  until  the 
same  was  modified  or  repealed  by  the  legisla- 
ture. In  all  the  revisions  of  the  statutes  since 
1820  to  this  time,  the  statute  introducing  the 
common  law  introduced  no  rule  of  that  law 
that  is  repugnant  to  or  inconsistent  with  the 
statute  laws  in  force  for  the  time  being. 
That  provision  gave  the  legislature  a  continu- 
ing power  to  change  the  common  law  at  will, 
which  has  frequently  been  done,  which  power 
the  Supreme  Court,  in  a  long  line  of  decisions, 
has  uniformly  recognized   and  upheld.     It  is 


THK  LAW  OF  CONSTRUCTIVE  CONTEMIT.    57 

chiiinc'd  now,  however,  that  the  legishiture 
had  no  power  in  1835,  nor  has  it  the  power  at 
this  time  to  change  the  common  law  of  con- 
tempt as  laid  down  by  Blackstone  a  hnndred 
and  fifty  years  ago.  According  to  that 
theory,  the  State  of  Missouri  is  in  as  bad  a 
predicament  as  Sinbad  the  Sailor  with  the  Old 
Man  of  the  Sea  on  his  back.  The  Territorial 
legislature  in  1816,  and  all  the  legislatures  in 
the  State  since,  in  inti'oducing  that  hiw,  re- 
served the  right  to  repeal  or  modify  it  at  will, 
and  besides  that,  the  people  in  the  Consti- 
tution of  1820  declared  that:  "  All  laws  now 
in  foicv  in  the  tei-ritory  of  Missouri,  which  are 
not  repugnant  to  this  Constitution,  shall  re- 
main in  force  until  they  expire  by  theii' 
own  limitations,  or  be  altered  or  repealed 
by  the  General  Assembly."  Here  the  Gen- 
eral Assembly  is  given  specific  authority 
to  alter  or  modify  all  laws  that  were  in 
force  at  the  time  the  Constitution  was 
adopted,  and  it  seems  plain  to  me  the  leg- 
islature, in  enacting  the  contempt  statute, 
exercised  the  power  given  to  it  by  the  Consti- 
tution, and  the  power  it  had  reserved  the  right 
to  exercise.  On  this  point  the  Supreme  Coui't 
in  the  Shepherd  case  seems  to  occupy  an  illog- 
ical position.  The  common  law  rule  of  con- 
tempt for  a  libel  upon  the  court  is  repaynant 
to  a  statute  of  the  State  legislature,  and  yet  that 
rule  of  the  common  law  is  invoked  by  the  court 
to  prove  that  this  statute  is  repugnant  to  the 
Const it2ition.  In  other  words  it  is  held  that 
the  contempt  statute   is  unconstitutional   not 


58  THE    LAW    OF    CONSTRUCTIVE    CONTEMPT. 

because  it  contravenes  any  specific  provision 
of  the  Constitution,  but  because  it  contra- 
venes a  rule  of  the  common  law,  which  rule, 
it  is  universally  conceded,  could  be  made  a 
rule  of  civil  conduct  in  Missouri  by  the  Gen- 
ei-al  Assembly,  and  by  that  alone,  and  could, 
at  any  time  be  abrogated  b}^  the  same  ])ower. 

In  I8i5,  1855,  and  1865  the  contem})t  act 
was  re-enacted,  and  thus  the  law-making 
power  claimed  and  exercised  the  power  to  en- 
act that  statute  for  a  period  of  forty  years, 
up  to  the  adoption  of  the  Constitution  of 
1875,  and  this  construction  by  the  legislature 
of  its  own  powers  must  be  considered  by  the 
courts,  as  will  be  shown  more  fully  hereafter. 

If  the  legislature  had  no  power  to  prescribe 
a  form  of  ])roceeding  in  the  case  of  contempt, 
and  that  rule  should  be  applied  generall}^ 
two  thirds  of  our  statutes  would  be  held  un- 
constitutional. In  1820  the  common  lawsys- 
tem  of  pleading  and  practice  was  in  force, 
and  the  judge  could  orally  comment  to  the 
jury  on  the  facts  as  well  as  the  law  of  the 
case,  and  the  courts  were  confined  to  certain 
forms  of  action  ;  but  in  1849  by  a  sweeping 
act,  the  General  Assembly  abolished  all  com- 
mon law  foi'ms,  and  prescribed  a  code  of  prac- 
tice and  pleading,  and  required  the  courts  to 
instruct  juries  in  writing  alone;  andin  follow- 
ing this  limitation  of  the  judicial  powei",  our 
Supreme  Court  became  so  technical  in  en- 
forcing it,  that  the  J^isi  Prius  judges  solilo- 
quized thus:  "  To  talk  or  not  to  talk  in  the 
presence    of    a   jury  —  that  is  the  question; 


Tin:  LAW  OF  construc;tivk  contkmi't.        ;j9 

wlu'tliur  it  is  l^ettcr  to  say  iiotliiii<^-  <•!•  to 
talk  gives  us  pause,"  aud  only  a  sliorl 
time  ag-o  the  Supreme  Court  reversed  a  case 
because  the  trial  judge  said  too  uiuch  in  the 
presence  of  the  jury,  and  this  year  the  ]ow(!r 
courts  have  been  I'evei'sed  in  numerous  cases 
on  the  ground  that  the  information  in  these 
cases  had  not  been  vei'ified  by  athdavit,  not 
as  I'equiiefl  by  the  Constitution,  hut  as  re- 
quired hij  a  stdtate,  by  which  men,  chni-ged 
with  grave  crimes,  have  bei-n  granted  new 
trials,  upon  a  technical  point  required  hij  tlie 
statute,  which  could  not,  and  did  not,  affect 
the  merits  on  the  tiial  of  the  cases  in  the 
slightest  degi'ee. 

The  legislature  has  not  only  changed  the 
civil  code  of  [)ractice,  but  it  has,  since  1820, 
invaded  the  domain  of  the  criminal  law,  and 
made  many  I'adical  changes  in  the  administra- 
tion of  that  law. 

It  may  be  asked  how  it  is  that  the  legisla- 
ture has  the  power  to  take  away  from  the 
courts  the  judicial  power  they  once  exercised 
in  commenting  orally  to  juries  on  the  facts  of 
cases,  and  can  change  the  forms  in  which  in- 
structions to  juries  on  questions  of  law  shall 
be  given,  and  to  abolish  the  old  forms  of  civil 
action  and  of  criminal  proceedings,  and  enact 
an  entii-ely  new  code,  and  not  have  the  jiower 
to  change  the  })ractice  in  contempt  cases, 
especially  when  that  change  is  to  prevent  the 
courts  from  exercising  a  jurisdiction  in  cases 
where  they  may  be  supposed  to  have  a  i)ei'- 
sonal  interest,  and  is  intended  to  be  in  support 


60    THE  LAW  OF  CONSTRUCTIVE  CONTEMPT. 

of  the  freedom  of  speech  and  the  press,  and  of 
the  right  of  trial  by  jury  in  a  chiss  of  cases  that 
it  required  a  century  of  the  fiercest  contest 
by  the  people  to  establish?  Again  the  legis- 
lature, after  the  adoption  of  the  Constitution 
of  1820,  changed  the  rules  of  evidence,  and 
the  competency  of  witnesses,  created  new 
causes  of  action,  new  crimes,  took  away  some 
old  actions,  and  declared  some  acts  innocent 
that  were  formerly  criminal,  and  changed  the 
rules  of  property  and  of  contracts,  especially 
in  regard  to  married  women.  These  changes 
have  stricken  the  shackles  from  our  mothers, 
wives  and  daughters,  so  that  to-day  they  are 
as  free  to  own  property  and  to  contract  in 
regard  to  it  as  men  are.  The  legislative  de- 
partment of  the  government  has  had  a  free 
hand,  and  its  decrees  therein  have  been  upheld 
in  these  respects.  Can  that  power  make  these 
changes  in  these  departments  of  human  rights 
and  activities  and  not  possess  the  power  to  pro- 
vide safeguards  for  one  of  the  fundamental 
pi'inciples  of  free  government  —  the  freedom 
of  the  press,  and  the  right  of  trial  by  jury  in 
case  that  freedom  is  abused,  and  to  prevent 
the  exercise  of  a  power  the  extent  of  which  is 
measui-ed  alone  by  the  discretion  of  the  party 
exercising  it,  both  as  to  the  scope  of  the  juris- 
diction and  the  extent  of  the  punishment  to 
be  inflicted?  There  can  be  but  one  answer  to 
this  question. 


THE    LAW  OF  CONSTKUCTIVE  CONTEMIT.    61 
III. 

The  judicial  poioer  conferred  on  the  courts  by  the  Constitu- 
tion of  1S75  does  not  authorize  them  to  exercise  juris- 
diction to  jninish,  by  thep''ocess  of  attachment  for  con- 
tempt, any  one  for  an  alleyed  libel  upon  the  courts,  their 
judges,  oncers,  or  the  parties  in  a  case. 

The  aro;-uments  hereiiibefoi-e  [)resented  to 
show  that  the  i)owei'to  punish  for  libel  upon 
the  courts  under  the  Constitution  of  1820  in 
-the  absence  of  lef»islation  on  the  subject  ai)- 
ply  with  equal  force  to  this  ]iai-ticular  power 
under  the  Constitution  of  1875,  and  this  point 
will  not  be  further  elaborated  here. 

IV. 

The  Const itxUion  of  1875  confers  power  on  the  General 
Assembly  of  this  State  to  enact  the  Contempt  Statute. 

All  the  arguments  hereinbefore  made  in 
favor  of  the  existence  of  this  power  in  the 
legislative  department  under  the  Constitution 
of  1820  apply  with  equal  force  in  favor  of  the 
same  power  under  the  Constitution  of  1875, 
and  are  here  invoked,  and  the  additional  rea- 
sons and  arguments  to  prove  the  existence  of 
that  powei-  under  the  Constitution  of  1875 
will  now  be  presented. 

If  ever  a  body  of  men  assembled  with  a  full 
and  fixed  pui'pose  to  eradicate  from  the  body 
politic  all  the  evils  that  had,  at  that  time, 
been  found  to  have  crept  intoit,  that  body  was 
the  Constitutional  Convention  of  1875.  There 
had  been  for  ten  years,  prior  to  the  assembling 
of  that  Convention,  a  general  discussion  of 
constitutional  law,  by  the  people,  the  law3'ers, 
and  the  courts  in  the  United  States,  that  hav- 


1)2    THE  LAW  OF  CONSTRUCTIVE  CONTEMPT. 

ing  been  the  period  of  the  reconstruction  of 
the  governments  of  the  seceding  States,  and 
especially  was  that  discussion  in  Missouri 
during  that  same  period,  not  only  general, 
but  heated,  and  oftentimes  bitter.  The  wis- 
dom of  ages  on  constitutional  principles  was 
again  examined  in  all  its  bearings  and  phases, 
and  the  Convention  of  1875,  enlightened  by 
this  widespread  agitation,  met  to  restate  the 
fundamental  principles  by  which  the  State 
government,  in  all  its  departments,  should  be 
restrained  and  guided.  Especially  was  this 
Convention  deeply  imbued  with  the  idea  that 
more  limitations  should  be  imposed  on  the 
three  co-ordinate  branches  of  the  government 
than  had  theretofore  existed,  in  order  to  con- 
form to  the  new  and  awakened '  opinions  of 
that  period.  That  the  members  of  that  con- 
vention must  be  presumed  to  have  been  famil- 
iar with  the  history  and  evolution  of  the  fun- 
damental principles  of  liberty  and  of  govern- 
ment, and  especially  with  the  constitutional 
history  of  Missouri,  and  of  the  exercise  of 
the  legislative  and  judicial  powers  since  1820, 
will  be  conceded  by  all. 

The  Su])reme  Court  in  Ry.  Co.  v.  Brick 
Co.,  85  Mo.  307,  speaking  on  this  subject 
said,  "  It  would  be  doing  violence  to  all  known 
rules  of  interpretation  to  assume  that  those 
who  framed,  and  those  who  by  their  votes 
adopted  our  Constitution  (of  1875),  were 
actuated  by  no  intelligent  purpose  in  that 
behalf.  On  the  contrary  it  must  be  assumed 
that  thej^  were  familiar  with  the  vicissitudes 


TIIK    LAW    OF  CONSTRUCTIVK    COXTK.MI'T.  G3 

incident  toc'ondeiniiation  procceding-.s,  and  with 
tlie  statutory  [)rovisi()n.s  rcdative  thereto."  If 
they  must  be  presumed  to  be  familial- with  the 
practice  in  pi'oceedingH  that  affected  i)rivate 
rights  only,  how  much  .sti'onger  must  be  the 
presumption  that  they  were  familiar  with  the 
constitutional,  legislative  and  judicial  history 
of  the  evolution  of  the  fundamental  principles 
of  free  government. 

Under  these  conditions,  the  Convention  of 
1875  went  to  work.  It  distributed  the  powers 
of  government  among  the  departments,  and 
declared  the  law  of  fi'ee  speech,  a  free 
press  and  libel  in  the  identical  language 
used  on  the  same  subject  in  the  Constitution 
of  1820.  The  same  general  language  is  also 
used  in  the  grant  of  legislative  power  as 
was  ill  the  previous  Constitution,  but  the  spe- 
cific limitations  upon  that  power  are  much 
more  numerous  and  important  than  had  pi'e- 
viously  existed  ;  but  nowhere  among  them  is 
to  be  found  any  limitation  of  the  legislative 
powei-  over  the  subject  of  contempt,  and  the 
presumption  is  that  the  framers  of  the 
Constitution  intended  that  ]JOwer  should 
remain  in  the  future  as  it  had  existed 
in  the  past.  The  legislature,  foi'ty  years 
before  1875,  enacted  a  statute,  restricting 
the  jurisdiction  of  the  courts,  in  contempt 
proceedings,  to  certain  cases,  and  that  statute 
was  placed  under  the  chapter  of  the  statutes 
defining  their  judicial  powers  and  duties. 
This  statute  was  re-enacted  in  181:5,  and  went 
into  the  revision  of  that  year,  under  the  same 


(i4         THE    LAW    OF    CONSTRUCTIVE    CONTEMPT. 

head.     Then  came  the    construction    of  this 
statute  by  the  Supreme  Court  fn  the  Harrison 
case  in  1847,  and  with  this  construction,  the 
same  statute  went  into  the  revisions  of  1855  and 
1865  under  the  same  head ;  and  how  can  the 
conclusion  be  avoided  that  when  the  convention 
granted  the  legislative  and  judicial  powers  in 
the  same  general  terms'as  in  the  Constitutions 
of  1820  and  1865,  with  certain  specified  limi- 
tations, it  intended   to  confer  these    powers, 
within  these  limitations,  as  they  had  been  ex- 
ercised by  the  legislative  and  judicial  depart- 
ments    and    meant  to    use  the    woi'ds   "  the 
judicial  power"  as  they  had  been  defined  and 
limited  by  legislative  enactment,  and  to  use  the 
words  "the   legislative  power"   in  the  sense 
that  the  General  Assembly  had  construed  and 
exercised    it    in    the    past?      The    legislative 
definition  of  the  judicial  power  over  the  sub- 
ject of  contempt  had  existed  for  forty  years, 
and  over  the  punishment  to  be    inflicted    in 
such  cases  for  fifty  years,  and  during  all  that 
long  period,  the  people,  Bench,  and  Bar  had 
acquiesced  in  that  definition  and  limitation, 
and   it  seems  obvious  that  if  the  Convention 
had  intended  to  reject  that  definition  and  lim- 
itation, it  would  have  said  so  in  plain  language, 
and  would  have  inserted  in  the  Constitution  a 
limitation  of  the  legislative  power  over  con- 
tempt proceedings,  but  it  did  nothing  of  that 
kind,  but  used  the  same  general  language  in 
the  grant  of  legislative  and  judicial  ])ower  that 
was  found  in  the  Constitution  of  1820. 

But,  again,  there  is  another  reason  why  it 


TlIK    LAW    OF    CONSTRUCTIVK    fONT?:MI*T.  05 

must  be  assmned  that  tlic  trainers  of  tlieCou- 
stitiitioii  of  LS75  did  not  intend  by  the  grant 
of  tlu'  judicial  |)ower  to  tlie  couits,  to  deprive 
the  legislature  of  power  over  contcinptfs,  and 
that  is,  the  new  courts  created  1)}'  that  Con- 
stitution. The  court  in  the  Shepherd  case 
concedes  that  it  is  only  a  constitutional 
court  that  is  not  subject  to  legislative  con- 
trol in  contemi)t  proceedings.  By  the  Con- 
stitution of  1820  the  only  courts  i-ecognized 
were  the  Supreme  Coui't,  the  Chancellor, 
and  Circuit  Coui'ts,  so  that  only  these  courts, 
according  to  the  decision  in  the  Shepherd 
case,  ai'e  beyond  the  conti'ol  of  the  legis- 
lative power,  but  by  the  Constitution  of  1875, 
"  Pi'obate  Courts,  County  Courts,  and  Muni- 
cipal Corporation  Courts"  are  recognized,  so 
that  if  the  legislature  has  no  control  over 
the  practice  in  contempt  cases,  any  citizen 
may  be  attached  by  a  probate  judge,  a  county 
coui't,  or  a  police  judge  and  tried  and  fined,  or 
imprisoned  and  this  without  limit  (except  the 
discretion  of  the  court),  without  the  interven- 
tion of  a  jury,  for  any  publication  that  such 
court  or  judge  might  deem  contempt;  and  I 
submit  that  it  cannot  be  conceived  that  the 
frainers  of  the  Constitution  intended  to  clothe 
any  of  the  courts,  especiall}'  these  subordi- 
nate courts  with  such  an  unrestrained  and 
unrestrainable  power. 

But  again  the  Constitution  of  1875  pro- 
vides that  "All  laws  in  force  at  the  adoption 
of  this  Constitution,  not  inconsistent  there- 
with, shall  remain  in  force  until  altered  or  re- 


66  THE    LAW    OF    CONSTKUCTIYE    CONTEMPT. 

pcalcd  by  the  General  Assembly.     The  pro- 
visions of  all  statntes,  which  are  inconsistent 
with  this  Constitution,  shall  cease   upon  its 
a(lo})tion."     The  General  Assembl}^,  when  it 
came  to  revise  the  laws  in  1879,  was  neces- 
sarily   required  to    examine  all  the  laws,    to 
determine    whether    they  were  repugnant  to 
the  Constitution,   ado])ted   since  the  last  re- 
vision, and  it  deliberately  put  the  contempt 
statute  in  the  revision  of  that  year,  without 
the  slightest  change,  and  continueditin  force 
so  far  as  it  could  do  so.     Hence  we  have  the 
opinion  of  the  legislative  and  executive  de- 
partments, with  Governor  Phelps  as  governor 
in  1879,  that  the  statute  in  question  is  Con- 
stitutional.    Then  in  1883  the  Crenshaw  case 
was   decided    by    the    Supreme    Court,    and 
afterw^ards  with  this  indorsement  of  the  con- 
tempt statute,  b}'  all  three  of  the  departments 
of  the  State   government,  by  the  legislative 
and  executive  in  1879,  and  by  the  judicial  in 
the  Crenshaw  case  in  1883,  that  statute  went 
into    the   revisions   of    1889    and  1899,  thus 
getting  the  indorsement,  as  to   its  validity  of 
two  more  legislatures,  and  two  more  governors. 
This    long  continued  construction  of,  and 
acquiescence  in  the  exercise  of  this  legislative 
power   by    the    people,  the  lawyers,  judges, 
governors  and  legislatures,  are  reasons  enough 
why  this  power  ought  to  be  upheld  now,  even 
if   it  were    originally  doubtful.     This  is  the 
rule   laid    down    by  Sutherland   (Stat.   Con., 
Sec.  397)  :     "A   contemporaneous  construc- 
tion of  a  statute  is  that  which  it  receives  soon 
after  its  enactment.     This,  after  the  lapse  of 


TIIK    LAW    OF    COXSTRLCTIVK    CONTK.M  IT.  ti7 

time,  without  change  of  that  construction  Ijy 
legislative  or  judicial  decision,  has  been  de- 
clared to  be,  generally,  th(?  best  construction. 
It  gives  the  sense  of  the  community  as  to  the 
terms  made  use  of  by  the  legislature."  Hence 
in  1003,  when  the  Shej^herd  case  was  up  for 
decision,  the  Supreme  Court  found  a  statute, 
denying  jurisdiction  to  it  in  the  subject-matter 
of  that  case,  which  had  been  in  force  for  sixty- 
eight  years,  and  another  denying  jurisdiction 
in  such  a  case  to  impose  a  gi'eater  fine  than 
one  hundred  dollars,  which  had  been  in  force 
for  seventy-eight  years,  and  dui'ing  those  long 
periods  thei-e  had  been  universal  acquiescence 
in  these  statutes  by  the  people,  by  seven  Gen- 
eral Assemblies,  and  seven  governors,  by  two 
Constitutional  Conventions,  and  three  times 
by  the  Supreme  Court,  in  the  Harrison  case  in 
18i7,  in  the  Rose  case  in  186G,  and  in  the 
Crenshaw  case  in  1883.  Notwithstanding  all 
this,  that  ancient  statute  was  set  aside  in  order 
for  the  court  to  acquire  jurisdiction  in  the 
Shepherd  case,  not  for  the  vindication,  but 
the  depi'ivation  of  a  Constitutional  right  of  a 
citizen  —  the  right  of  trial  by  jury,  which  has 
been  deemed  by  the  Anglo-Saxon  people  for 
centuries  as  the  great  bulwark  of  liberty. 

Y. 

The  Contempt  Statute  is  not  void  ^cpon  the  alleged  ground 
that  it  deprives  the  courts  of  an  essential  attribute  with- 
out  ivhich  they  cannot  exist. 

THE     LAW    OF    NECESSITY. 

The  courts  base  their  power  to  punish  for 
contempt,  chielly  upon  the  law  of  necessity, 


08         TJIE    LAW    OF    CONSTRUCTIVE    CONTEMPT. 

which  is  the  hiw  of  self-defense.  To  some 
extent  that  may  be  true.  That  the  courts 
should  have  the  powei*,  by  summary  process, 
at  the  time  to  keep  the  peace  within  their 
own  precincts  ;  to  protect  themselves  and  the 
parties  concerned,  in  the  business  before  them, 
from  insult  and  interference,  and  enforce  their 
orders  and  judgments,  is  too  axiomatic  to 
admit  of  proof  b}'  argument;  but  acts  or 
words,  done  or  said,  or  published  away  from 
the  courts,  and  not  in  their  presence,  stand 
upon  different  grounds  entirely,  because  the 
law  of  necessity  does  not  apply  in  these,  there 
being  other  more  appropriate  remedies  for  any 
wrong  growing  out  of  them. 

It  is  submitted  that  the  law  of  necessity 
cannot  be  invoked  in  support  of  the  power  of 
the  courts  to  try  and  punish  for  contempt  any 
one  for  the  publication  of  a  libel  upon  them  or 
for  other  acts  not  doneiji  their  presence.  An 
abstract  theory,  though  in  appearance  it  may 
be  most  plausible  and  beautiful,  is  sometimes 
flatly  contradicted  by  experience  and  the  facts 
of  history,  and  that  is  the  case  with  the  theory 
upon  which  this  power  is  made  to  rest  by  its 
advocates.  It  is  asserted  that  this  power  is 
an  essential  attribute  of  all  courts,  and  im- 
mediately this  is  qualified  by  the  statement 
that  it  is  an  essential  attribute  of  constitutional 
courts  only  —  that  a  statutor}^  court  may  be 
deprived  of  this  essential  attribute,  and  yet 
continue  to  exist  as  a  court.  This  is  the  rule 
generally  applied  by  the  courts.  This  was 
done  by  the  Supreme  Court  of   the   United 


THE    LAW    OF    CONSTKUC   1  1  \  I.    (ONTKMIT.  <)i> 

Status  ill  Ex  Parte  Robinson,  19  AVail.  505  ; 
in  tlie  Fivvv  case,  24  AV.  Ya.  416;  in  tiie 
Shepherd  case,  and  many  others.  So  that  it 
seems  that  the  law  of  necessity  is  the  support 
of  some  courts,  and  some  courts  have  to  stand 
without  that  law.  The  reason  for  such  a  dis- 
tinction is  not  apparent  to  the  writer.  To  my 
mind,  that  so-called  law  of  necessity  is  no  law 
of  necessity  at  all,  for,  if  it  were,  no  court 
could  exist  without  it. 

But  this  is  not  all.  This  theory  of  the  law 
of  necessity,  as  apjjlicable  to  the  punishment 
for  contempt  for  newspaper  publications,  is 
flatly  conti'adicted  by  the  facts  of  history. 
The  Supreme  Court  of  the  United  States  has 
never  exercised,  or  attempted  to  exercise  such 
a  ])ower,  though  it  has,  at  times,  for  one 
hundred  years  or  more,  been  vilified,  abused 
and  libeled  in  an  outrageous  manner.  It  has 
been  libelously  criticised  by  the  public  press 
for  its  decisions  in  the  ^N^ational  13ank  cases, 
the  Dartmouth  College  case,  the  Dred  Scott 
case,  the  Reconstruction  cases,  the  Legal 
Tender  cases,  and  we  all  remember  the  vitu- 
perative and  libelous  attacks,  made  by  the 
press  and  many  public  speakers,  upon  that 
hisfh  tribunal  for  its  decisions  in  the  Income 
Tax  and  Insular  cases ;  and  yet  the  court  re- 
mained silent  and  passive  ;  but  it  still  exists  in 
all  its  vigor.  That  court,  in  1873,  in  E.c  Parte 
Robinson,  decided  that  under  the  Act  of 
Congress  of  March  2,  1831,  the  courts,  in- 
ferior to  the  Supreme  Court  of  the  United 
States,    have  no    jurisdiction  in  a    contempt 


70    THE  LAW  OF  CONSTRUCTIVE  CONTEMPT. 

proceediiio'  for  acts  not  committed  in  their 
presence  ;  and  yet  there  are  no  courts  of  the 
States  of  this  Union  that  stand  hi<>-her  or  are 
more  respected  than  the  United  States  Courts 
of  Appeals,  the  United  States  Circuit  Courts, 
and  the  United  States  District  Courts.  The 
members  of  the  Supreme  Court  often  sit  in 
some  of  these,  and  aid  in  the  administration 
of  tile  law  in  the  trial  of  causes.  These  courts 
are  absolutely,  so  far  as  their  power  to  pun- 
ish as  for  a  contempt  a  newspaper  publication, 
at  the  mercy  of  the  slanderers  and  libelers  of 
this  country,  which  our  Supreme  Court  stands 
so  much  in  dread  of.  And  yet  those  courts 
continue  to  exist  as  courts.  And  our  State 
Supreme  Court,  the  Courts  of  Appeals,  and 
the  Circuit  Courts  never  exercised  this  extra- 
ordinary prerog-ative  prior  to  1903,  and  yet 
they  continued  to  exist.  The  same  may  be 
said  of  ninety-nine  per  cent  of  all  tlie  courts 
in  our  country.  Lords  Erskine  and  Campbell 
did  not  think  this  power  essential  to  a  court. 
Speaking  upon  this  very  point,  the  Su- 
preme Court  of  Illinois,  in  the  Storey  case, 
supra,  quoting  from  a  former  decision  of  the 
same  court,  said :  "  It  does  not  seem  neces- 
sary for  the  protection  of  courts  in  the  exer- 
cise of  their  judicial  ])ower,  that  this  one  (con- 
tempt for  libelous  publication),  so  liable  to 
abuse  should  also  be  conceded  to  them.  It 
may  be  so  frequently  exercised  as  to  destroy 
that  moral  influence,  which  is  their  best  pos- 
session, until  finally  the  administration  of  jus- 
tice is  brought  into  disrepute.      Respect  for 


TIIK    LAW    OF    rOXSTRUCTIVE    COXTKMIT.  71 

courts  cannot  he  compelled.  It  is  the  volun- 
tary tril)ute  of  the  pul.'lic  to  worth,  vii'tue  and 
intelli<;uncc,  and  while  they  are  found  upon 
the  ju(Jfi,inent  seat  so  long,  and  no  longer,  will 
they  I'etain  the  public  confidence.  If  a  judge 
be  libeled  by  the  public  press,  he  and  his  as- 
sailant should  be  placed  on  equal  grounds, 
and  their  comirion  arbiter  should  be  a  jury  of 
the  county." 

The  Supreme  Court  of  Wisconsin,  speaking 
on  the  same  subject,  in  State  exrel.  v.  Court, 
44  L.  K.  A.  554,  said,  "  Is  it  necessary  that  a 
court  should  possess  this  power?  We  feel 
bound  to  hold  that,  considering  the  rights  of 
the  citizen  just  referred  to,  no  such  power  as 
this  is  necessary  for  the  due  administration 
of  justice.  It  may  be  fully  admitted  that 
under  the  common  law  as  administered  in  En- 
gland, the  mere  writing  contemptuously  of  a 
superior  court  of  justice  has  been  declared  a 
constructive  contempt,  4  Bl.  Com.  285.  We, 
however,  adopted  no  part  of  the  common  law 
which  was  inconsistent  with  our  Constitution 
(Cons. Wis.  Schedule,  Sec.  131),  and  it  seems 
clear  to  us  that  so  extreme  a  powei"  is  incon- 
sistent with  and  would  materially  impair  the 
Constitutional  right  of  free  speech  and  free 
print." 

To  the  same  effect  is  the  opinion  of  the 
court  in  ^lississippi,  in  Ex  Parte  Ilickey,  4 
Smedes  &  M.  751,  and  it  has  been  the  firm 
conviction  of  the  people  of  this  country  for 
over  a  hundred  yeai's  that  this  power  is  not 
necessary,  but  that  it  is  a  power,  so  arbitrary 


72  THE    LAW    OF    CONSTRUCTIVE    CONTEMPT. 

and  SO  liable  to  abuse,  that  it  ought  not  to 
be  intrusted  to  the  court,  but  that  cases,  in- 
volving the  abuse  of  the  freedom  of  speech 
and  of  the  press,  ought  to  be  tried  by  an  im- 
partial jury  before  courts  that  have  and  can 
have  no  personal  interest  in  the  result.  Hence 
this  power  in  this  respect,  not  being  based  on 
the  law  of  necessity,  can  be  taken  away  from, 
or  not  conferred  on  the  courts  at  the  will  of 
the  legislature.  Whether  the  power  to  pro- 
tect themselves  from  insult,  and  keep  the 
peace  in  their  own  precincts,  and  enforce  their 
own  judgments  can  be  taken  away  from  the 
courts,  or  given  to  some  other  judicial  tribu- 
nal, has  not  arisen  in  this  country  yet,  for  no 
legislature  has  ever  up  to  this  time  attempted 
to  go  that  far,  and  until  such  an  attempt  is 
made,  so  improbable  a  contingency  need  not 
enter  into  the  discussion. 

Our  contempt  statute  not  only  recognizes, 
but,  in  terms,  confers  the  power  on  the  courts 
to  punish  for  contempts  committed  in  their 
presence,  and  for  refusing  to  obey  the  pro- 
cess or  orders  of  the  court,  and  beyond  these 
the  law  of  necessity,  if  it  exist  at  all,  does  not 
extend. 

VI. 

The   adjudged   cases  do    not   support   the   judgment    in 
the  Shepherd  case. 

I  might  very  well  leave  the  question  upon 
these  points,  already  made,  believing  that  it 
has  been  conclusively  shown  that  the  power, 
claimed  by  the  court  in  this  case,  does  not 
exist  in  Missouri,  no    matter  what  the    rule 


THE    LAW    OF    CONSTKrCTIVE    CONTE.Ml'T.  73 

may  be  in  othei*  jurisdictions,  but  I  propose 
to  <i^ive  a  brief  review  of  the  cases  on  this 
question.  Out  of  the  forty-five  States,  tiie 
courts  in  only  two,  Arkansas  and  West  Vir- 
ginia, have  set  aside  statutes  in  order  to  ob- 
tain jui'isdiction  to  punish  as  for  a  contempt, 
a  hbelous  newspaper  publication.  The  Ar- 
kansas decision  was  in  1855,  State  v.  Morrill, 
16  Arkansas,  38-1,  and  the  West  Virginia  de- 
cision (State  v.  Frew,  24  W.  Va.  41(3)  in 
1884;  and  two  other  courts,  Georgia,  in  Brad- 
ley V.  State,  50  L.  R.  A.  691,  and  Vii'ginia, 
in  Com.  V.  Carter,  45  L.  R.  A.  310,  have 
held  that  the  courts'  inherent  power  to  punish 
contempts  cannot  be  limited  by  the  legisla- 
tive power,  but  these  cases  did  not  involve 
newspaper  publications.  In  the  Carter  case. 
Carter,  an  attorney  of  the  court,  had  induced 
a  witness,  by  falsehood,  to  remain  away  from 
court,  in  oi'der  that  he  might  get  a  continu- 
ance, and  in  order  to  punish  Carter,  the  court 
held  an  act  of  the  Virginia  General  Assembly, 
passed  in  1897,  giving  the  accused,  in  an  in- 
direct contempt  case,  the  right  of  trial  by  jui-y, 
unconstitutional.  In  the  Bradley  case,  the 
Supreme  Court  of  Geoi'gia  not  only  set  aside 
a  statute,  but  the  Constitution  also,  in  order 
to  get  jurisdiction  to  punish  Bradley  for  con- 
temi)t  in  proposing  to  corrupt  a  jury  in  a 
pending  case.  In  these  last  two  cases  the 
courts  exercised  the  power  to  punish  for  a 
contempt,  in  defiance  of  statutes,  to  prevent 
corrupt  practices  in  cases  pending  before  the 
courts,  and   in  these  cases  the  courts  or  the 


74  THE    LAW    OF    CONSTRUCTIVE    CONTEMPT. 

judges  had  no  personal  interest,  and  the  acts 
of  contempt  were  of  such  a  nature,  when 
proved,  that  there  could  be  no  defense  or 
excuse  on  the  part  of  the  accused  for  them. 
In  the  Frew  case,  the  accused  set  about  de- 
lil^erately,  either  to  influence  the  Supreme 
Court  of  West  Virginia  in  the  disposition  of 
a  cause  pending  before  that  court,  in  which 
he  was  personally  interested,  or  else  to  bring 
the  court  into  contempt  for  not  deciding  in 
his  favor,  and  the  publications  wei'e  continued 
for  a  long  time,  and  repeated,  in  order  to 
carry  out  his  purposes.  This  leaves  the  Mor- 
rill case  as  the  only  one  exactly  like  the  Shep- 
herd case,  except  that  in  the  former,  the  case, 
for  the  criticism  of  which  he  was  attached, 
had  been  finally  disposed  of,  while  in  the 
Shepherd  case  a  motion  for  rehearing  in 
Oglesby  v.  Kailroad  Company  was  still  pend- 
ing when  Shepherd  published  the  objection- 
able article.  But  Mr.  Shepherd  alleged  that 
he  did  not  know  this,  but  had  supposed  the 
case  was  finally  disposed  of  when  it  was  re- 
versed without  being  remanded.  The  facts 
in  the  Frew,  Bradley  and  Carter  cases  are 
given  not  for  the  purpose  of  justifying  the 
assumption  of  jurisdiction  by  the  courts  of 
Viiginia,  West  Virginia  and  Georgia  in  the 
cases  named,  for  if  they  had  no  jurisdiction 
to  act,  it  makes  no  difference  how  aggra- 
vated the  cases  were.  The  courts  in  these 
four  States  have  gone  farther  than  the  courts 
in  any  other  State,  and  they  stand  alone  in 
holding  contempt  statutes,  containing  nega- 


THK    LAW    OF    CONSTRUCTIN  i:    (  <  J.M  KM  ri  .  <  .> 

tive,  or  restrictive  woi'ds  unconstitutional  in 
order  to  exercise  this  extraordinary  i)o\ver. 
In  these  cases  the  (juestion  of  the  unconsti- 
tutionahty  of  the  statute  was  squarely  pre- 
sented l)y  the  record,  and  decided  by  the 
coui'ts. 

But  our  couit  in  the  Shei)herd  case  went 
farthei-  than  these  courts.  Our  court  says  : 
"The  law  is  well  settled,  both  271  Kngland 
and  America  that  the  leg-islatuie  has  no  power 
to  tale  aivaij^  ahridye,  impair,  U)iilt  or  reg- 
ulate, the  power  of  courts  of  record  to  punish 
for  contempt."  This  is  a  most  sweeping 
generalization  of  this  rule,  and  it  cuts  up,  by 
the  roots,  our  whole  contempt  statute,  and 
leaves  the  coui'ts  free  to  determine,  at  their 
discretion,  theii"  own  jurisdiction,  and  tlie  ex- 
tent of  the  punishment  they  may  inllict  in 
both  direct  and  constructive  contempts. 
When  the  court  says  this  rule  is  well  settled 
in  England,  it  must  be  assumed  that  it  meant 
the  English  authorities  settled  it  so  far  as  an 
American  legislature  is  concerned  ;  i)ecause  it 
is  inconceivable  that  any  court  would  assert 
that  the  English  legislature,  the  Parliament, 
has  no  such  power.  No  English  jui'ist  ever 
asserted  an}'  such  proposition.  Nor  do  any 
of  the  American  authorities,  cited  by  the 
court  for  this  rule,  sustain  the  broad  propo- 
sition laid  down  by  the  court  in  its  entirety. 
The  courts  of  Arkansas,  West  Virginia,  Vir- 
ginia and  Georgia,  in  the  cases  cited,  while 
denying  the  power  of  the  legislature  to  take 
away  from   the  courts  their  inherent  and  es- 


76    THE  LAW  OF  CONSTRUCTIVE  CONTEMPT. 

se7it{ al  attvWmtcs,  concede  that  the  legislature 
may  reyalate  the  exercise  of  the  power  to 
punish  for  contempt,  and  in  the  other  cases 
cited  by  the  court  from  the  reports  of  Ken- 
tuck}^,  Connecticut,  Illinois,  Indiana,  Cali- 
fornia, Colorado,  Michigan,  Nebraska  and 
Ohio,  the  question  of  this  legislative  power 
was  not  involved,  for  in  all  of  them  the  courts 
decided  that  the  legislatures,  in  those  States, 
had  not  attempted  to  restrict,  by  negative 
words,  the  power  of  the  courts  in  the  punish- 
ment of  contempt,  except  possibly  as  to  the 
extent  of  the  punishment,  that  might  be 
inflicted,  and  in  this  respect  they  sustained 
the  statutes.  It  is  true  the  courts  in  some 
of  those  cases  took  excursions  into  fields 
outside  of  the  record,  and  in  some  of  them 
uttered  dicta  of  an  extreme  nature  about  the 
inherent  and  essential  powers  of  courts  in 
general,  but  none  of  them  went  so  far,  in 
these  extra-judicial  comments,  as  our  court 
has  in  the  extract  above  quoted,  and  in  many 
of  these  the  power  of  the  legislature  to  limit 
the  jurisdiction  of  courts  in  contempt  cases, 
and  to  prescribe  rules  of  practice  therein,  was 
distinctly  sustained  (see  page  78,  post). 

The  courts  speak  of  their  inherent  powers, 
apparently  implying  that  aside  from  the  pro- 
visions of  the  constitutions  or  statutes  creat- 
ing them,  they  possess  some  powers  derived 
in  some  other  way  and  from  some  other 
source.  This  is  misleading.  The  American 
courts,  created  by  the  constitutions  of  the 
several  States,  have  no  power  or  jurisdiction 


TIIK    LAW    OK    CONSTKUrTIVK    rONTK.MI'T.  77 

excfpi  .^uch  as  is  confided  to  them  hij  suc/t  con- 
stitutions or  statutes.  The  courts  are  uni- 
formly clothed  with  the  judicial  power  in  sub- 
stantially the  sauK'  lan^ua^e  as  that  used  in  the 
Missouri  constitution  and  they  must  look  to 
these  words  alone  for  their  entire  jurisdiction. 
Outside  of  this  grant,  couched  in  this  lan- 
guage, they  have  no  power  to  go.  If  the 
powei-  to  punish  for  all  classes  of  contempts  is 
included  in  these  words,  the  courts  can  exer- 
cise such  power,  otherwise  not.  So  it  is  not 
strictly  coi-rect  to  say  that  the  courts  have 
inherent  powers  ;  they  have  no  poweis,  except 
such  as  are  granted  by  the  sovereignty  creat- 
ing them. 

The  judicial  power  confided  to  the  courts 
does  not  remain  the  same  for  all  time.  It 
may  be  enlarged  or  diminished  by  the  law- 
making power  as  the  exigencies  of  govern- 
ment and  administration  may  demand.  The 
only  limitation  in  America,  upon  the  legisla- 
tive power  in  the  grant  of  the  judicial  j)o\ver 
to  the  courts,  is  that  this  power,  whatever  it 
be  at  any  given  time,  must  be  exercised  by 
the  courts  and  cannot  be  conferred  on  either 
of  the  other  departments  of  government.  If 
the  legislatures  of  our  States  have  no  power 
to  change  and  regulate  the  jurisdiction  of  the 
courts  and  no  power  to  define  the  judicial 
power  that  shall  be  exercised  by  them,  then, 
as  has  been  shown  above,  progress  in  govern- 
ment and  administration  is  impossible.  The 
judicial  power,  confided  to  the  courts,  would, 
on  such  assumption,  have  to  remain  as  it  ex- 


78  THE    LAW    OF    CONSTRUCTIVE    CONTEMPT. 

isted  at  the  time  it  is  conferred  until  it  is 
cliangedbya  constitutional  amendment  though 
the  forms  of  procedure  and  the  rules  of  per- 
sonal and  property  rights  may  have  become  en- 
tirely inconsistent  with  the  conceptions  of  right 
and  wrong  in  society.  Such  a  theory  is  not 
sustained  by  sound  reason  nor  by  experience. 
In  all  the  States  from  the  beginning  the  legis- 
latures have,  by  statutes,  inaugurated  law 
reforms,  not  only  by  changing  the  rules  of 
pleading  and  practice  in  the  courts  but  by 
introducing  new  laws  creating  new  rights, 
and  modifying  old  ones,  thus  changing  the 
judicial  power  that  thecourts  exercise,  and  the 
courts  themselves  with  the  single  exception 
of  contempt  statutes  in  a  few  States,  have 
cordially  sanctioned  these  reforms  and  often- 
times have  highly  recommended  them  as  being 
in  line  with  the  ideas  of  advancing  civilization. 
Why  any  of  the  courts  should  single  out  the 
power  to  punish  for  contempts,  which  all  the 
sages  of  the  law  concede  to  be  an  arbitrary 
and  despotic  power,  as  being  so  sacred  that 
the  people,  through  their  Greneral  Assemblies, 
have  no  right  to  modify  or  regulate  its  exer- 
cise, no  matter  what  the  exigencies  of  the 
times  may  require,  no  reasonable  man  can 
conceive. 

Two  of  the  cases  cited  by  the  court  in  the 
Shepherd  case  are  Res  v.  Oswald,  and  Res  v. 
Passmore,  which  gave  rise  to  the  impeach- 
ment proceedings  against  Chief  Justices  Mc- 
Kean  and  Shippen  and  finally  to  the  enactment 
of  the  statute  of  Pennsylvania,  prohibiting  the 


TllK    LAW    OF    CONSTRUCTIVE    CONTEMI'T.  71> 

exercise  of  jurisdiction  to  [)iinish  for  contempt 
for  a  newspaper  publication,  which  cases  have 
not  been  followed  in  that  State  foi-one  bundled 
years.  Those  cuses  were  decided  befoi'c  tiie  leg- 
islaturepassed  any  contempt  statute,  and  hence, 
the  courts  could  not  have  [)roperl3'  passed  on 
this  question.  At  that  time  the  court  undoubt- 
edly had  the  power,  in  such  cases,  to  punish 
for  any  common  law  contempt.  Another  case 
cited  by  the  court  in  support  of  its  contention 
is  Ex  Parte  Robinson,  19  Wall.  505.  That 
case  arose  in  a  district  court  of  the  United 
States,  in  1873.  The  respondent,  a  law3'er  of 
the  court,  had  caused  a  witness  to  evade  the 
service  of  pi-ocess  on  him  for  which  he  was 
attached  as  foi-  a  contemj^t  and  disbarred. 
The  matter  being  brought  before  the  Supieme 
Court  of  the  United  States,  that  court  after 
having  referred  to  the  act  of  Congress  of 
March  2,  18ol,  said,  "The  Act  in  terms 
applies  to  all  courts :  whether  it  can  be  held 
to  limit  the  authority  of  the  Supreme  Court, 
which  derives  its  existence  and  powers  from 
the  Constitution,  may  perhaps  he  a  matter  of 
doubt.  But  that  it  applies  to  the  Circuit  and 
District  courts,  there  can  be  no({uestion,  they 
being  creatures  of  the  statute."  This  is  as 
near  as  the  Supreme  Court  of  the  United 
States  has  evei*  come  to  deciding  this  question 
as  to  a  Constitutional  Court.  That  court 
has,  however,  been  in  existence  one  hundred 
and  fifteen  years,  and  it  never  attempted  to 
exercise  this  power  in  the  cases  not  embraced 
within  the  Act  of  March  2,  1831,  either  before 
its  enactment  or  since. 


80         THE    LAW    OF    CONSTRUCTIVE    CONTEMPT. 
THE    LEGISLATIVE    POWER    UPHELD. 

The  constitutionality  of  contempt  statutes 
was  presented  by  the  records,  and  upheld  in 
Oregon  in  State  v.  Kaiser,  8  L.  R.  A.  58;  in 
Illinois  in  Store}^  v.  People,  79  Illinois,  45 ; 
in  J^ew  York  in  Rutherford  v.  Holmes,  66 
N.  Y.  352;  in  North  Carolina  in  Walker's 
case,  82  N.  C.  95,  and  Cromartir's  case,  85 
id.  211 ;  in  Iowa  in  Dunham  v.  State,  6 
Iowa,  245,  and  State  v.  Anderson,  40  Iowa, 
20;  in  Florida  in  Ux  Parte  Edwards,  11 
Florida,  174;  in  Kentucky  in  Arnold  v.  Com., 
80  Ky.  300  ;  in  Mississippi  in  ^a;P«r/eHickey, 
4  Smedes  &  M.  751 ;  in  Tennessee  in  State 
v.  Galloway,  5  Caldw.  326 ;  in  Michigan  in 
Langdon  v.  Judges,  76  Mich.  367;  in  Wis- 
consin in  State  ex  rel.  v.  Judges,  44  L.  R.  A. 
554;  in  Colorado  in  People  v.  Stapleton,  23 
L.  R.  A.  789;  in  California  in  Bachelder  v. 
Moore,  42  Calif.  412  ;  in  Ohio  in  Hale  v.  State, 
36  L.  R.  A.  254 ;  in  Nebraska  in  State  v.  Pub. 
Co.,  50  L.  R.  A.  195  ;  in  Indiana  in  Balderson 
V.  State,  31 ;  in  Kansas  in  Re  Barnhouse,  60 
Kansas,  849;  and  in  Connecticut  in  State  v. 
Middlebrook,  43  Conn.  257. 

In  some  of  these  cases  there  was  much  said 
about  the  inherent  and  essential  power  of 
courts  in  general,  and  that  the  legislature 
could  not  go  so  far  in  its  restraint  of  the 
jurisdiction  of  courts  as  to  entirely  deprive 
them  of  all  power  to  act  in  their  own  defense, 
but  as  the  statutes  referred  to  in  these  cases  did 
not  go  that  far,  nor  attempt  to  do  so,  what 
was  said  on  this  subject  was  mere  dictum. 


TIIK    LAW    or    CON'STKUCTIVE    CONTKMIT.  b  1 

III  a  late  case  in  Texas,  Ex  parte  Foster, 
OU  L.  K.  A.  63,  the  Court  of  Criminal  A\)- 
peals  reviewed  the  cases  in  this  couiiti'y,  and 
repudiatefl  a  great  deal  of  what  had  been  said 
by  the  courts  in  regaivl  to  contempt  as  mere 
dictum.  From  this  review  it  seems  that  the 
power  of  the  Legislature  over  contempt  and 
contempt  practice  is  sustained  by  an  over- 
whelming weight  of  authority  in  the  United 
States. 

But  it  must  be  observed  here  that  the 
courts,  in  theii*  discussions  of  this  subject,  had 
in  view,  chiefly,  the  right  of  self-defense, 
which  they  insist,  inheres  in  every  court,  that 
is,  the  right  to  defend  itself  against  insult 
offered  in  its  presence,  to  keep  the  peace  in  its 
own  precincts  and  to  enforce  its  orders  and 
decrees,  and  they  seemed  to  be  apprehensive 
that  if  the  power  to  interfere  in  any  particular 
with  this  jui'isdiction  in  contempt  cases  was 
conceded  to  the  legislative  department,  that 
department  might  go  too  far  in  restricting 
them  in  such  cases.  In  other  words  the  legis- 
lature might  abuse  its  power.  But  that  is  no 
valid  reason  why  such  power  does  not  exist. 
All  authority  may  be  abused  and  often  is 
abused.  The  legislative  department  repre- 
sents the  people  in  a  higher  and  better  sense 
than  the  other  two  departments  of  the  govern- 
ment and  to  hold  that  it  ought  to  be  shorn  of 
its  rightful  power,  because  it  might  abuse  it, 
is  directly  contrary  to  the  theory  that  the 
people  ai'e  capable  of  self-government.  In  a 
popular  government    like  ours,   the  presump- 

6 


82  THE    LAW    OF    CONSTRUCTIVE    CONTEMPT. 

tioii  ought  to  he  constantly  indulged  that  if 
the  law-making  power  make  a  mistake,  the 
people  will  discovei'  and  rectif}'  it.  It  would 
be  a  violent  presumption  that  the  general 
assembly  would  desire  to  rob  the  judiciary  of 
the  power  to  carry  out  the  ends  foi-  which  it 
was  instituted.  It  never  has  gone  that  far 
and  nevei-  will  until  the  people  lose  the  faculty 
of  self-government. 

Another  fact  must  not  be  overlooked  in  the 
examination  of  this  question  and  that  is  no 
court  in  this  country,  or  an}'  countr3%  for 
that  matter,  ever  set  aside  a  statute  in  order 
to  acquire  jurisdiction  in  a  contempt  case 
until  the  Supi'eme  Court  of  Arkansas  in  the 
Morrill  case  in  1855  did  that.  That  decision 
was  not  rendei'ed  until  a  half  century  after 
the  Shippen  case  and  a  quarter  of  a  century 
after  the  Peck  case  and  the  decisions  in  West 
Virginia,  Virginia  and  Geoi'gia,  setting  aside 
legislative  enactments,  in  contempt  cases, 
were  made  more  than  seventy-five  years  after 
the  Shippen  case  and  more  than  fifty  years 
after  the  Peck  case.  And  while  Mi".  Bu- 
chanan went  asti'ay  in  his  prophesy  that  no 
matter  how  the  Peck  impeachment  trial  ter- 
minated, Peck  would  be  the  last  judge  to 
exercise  the  power  to  })unish  as  for  a  con- 
tempt any  one  for  libelous  publications  in 
newspapers  and  Lawless  would  be  the  last 
victim  of  the  exercise  of  such  power,  the 
generation  of  1830  had  to  pass  away  and  the 
traditions  of  the  past  be  foi'gotten  by  a  ncAV 
generation   before  any  court  could  be  found 


Tin:  LAW  OF  CONSTRUfTIVK  rONTHMIT.    83 

tliat  would  go  so  fill'  as  to  set  aside  a  statute 
in  ordei'  to  exercise  a  jurisdiction  so  ol)uox- 
ious  to  the  people.  Tiiis  liistorical  fact  sheds 
a  Hood  of  light  on  what  oui'  fathers  meant 
i)y  tiu'ii'  constitutions  adopted  seventy-five  oi' 
a  hundi'cd  years   ago. 

THE    ISSUES    OF    FACT    IN    A    CONTEMPT    CASP:. 

There  is  one  other  phase  of  the  She[)herd 
case  that  I  desire  to  notice,  and  that  is,  what 
issues  of  fact  are  properly  trial)le  in  a  contempt 
case.  The  coui't  on  this  j)oint  used  tiiis  lan- 
guage :  "The  Att(>rney-General,  in  o|)en 
court,  deman(i('(l  of  the  defendant  and  his 
counsel  to  know  whether  or  not.  tliey  de-ired 
an  Oj)portnnity  to  show  the  truth  of  the  nnit- 
tei's  charged  in  the  article  aforesai<l.''  And 
ajrain  the  court  savsthat  when  the  defendant 
was  "challiMiged  to  make  his  words  good,  he 
consummates  his  offending  hy  failing  abso- 
lutely to  produce  one  word  of  testimony  to  show 
that  he  told  the  truth,  and  instead  of  making 
the  amende  honorahle  by  witlulrawing  the 
charge,  and  apologizing  like  a  man,  seeks  to 
escape  punishment  by  challenging  the  jui'is- 
diction  of  this  court  to  protect  itself  from  in- 
sult, and  maintain  the  respect  and  dignity  with 
which  the  people  have  invested  it;  denies  that 
the  facts  cliai'ged  are  suflieient  to  constitute  a 
contempt,  and  i-aises  other  technical  an<l  con- 
stitutional (juestions.'''  And  again  it  says. 
•'  He  did  not  dai'e  to  attempt  to  [)rove  or  tdaim 
that  it  (the  ai'ticle)  was  true,  but  stood  unite 
as  to  that,  an  1   sought   to  escape  j)unisinnent 


84  THE    LAW    OF    CONSTRUCTIVE    CONTEMPT. 

on  othcM"  gi'ouiuls,  which  were  untenable.     He 
tvas  therefore  guilty  of  malice.'''^ 

This  offer  to  the  defendant  to  pcn-mit  him 
to  prove  the  truth  of  the  chai'ge,  under  the 
circumstances  was,  to  say  the  least,  unusual, 
and  out  of  the  ordinary  course.  Here  were 
seven  judges  who,  it  was  alleged,  had  been 
charged  with  corruption  by  the  defendant, 
and  he  is  asked  to  prove  to  the  satisfaction  of 
these  same  judges,  that  they  had  been  cor- 
rupted. The  judges  were  to  sit  as  a  jury,  not 
only  to  try  the  issue  involving  their  own  hon- 
esty, but  they  were  also  to  sit  as  a  court  to 
determine  all  questions  of  law  as  to  the  com- 
petency of  witnesses,  and  the  admissibility  of 
evidence.  In  other  words,  they,  as  a  court, 
were  to  determine  the  law^  and,  as  jui"ors,  the 
fact.  The  mere  statement  of  this  proposition 
shows  that  no  such  issue  could  have  been 
made  in  the  way  it  was  attempted  to  be  made 
before  the  court  in  that  case.  And  the  fact, 
that  the  offer  to  permit  defendant  to  prove  the 
truth  of  the  charge  he  had  made,  is  strong 
pi'oof  that  the  charge  made  did  not  constitute 
contempt  at  all,  but  was,  if  untrue,  a  mere 
libel  upon  the  judges,  which  should  have  been 
tried  in  anothei-  way.  A  contem[)t  is  an  in- 
dignity to  the  majesty  of  the  law,  which  is 
supposed  to  be  present  in  all  courts  of  justice  ; 
and  when  that  majest}^  has  been  insulted,  in- 
stant punishment  should  follow,  and  the  truth 
of  the  charge  contained  in  the  insult  is  no 
defense.  Let  us  illustrate  this.  Suppose  a 
lawyer  should  enter  a  court  room,  and  say  to 


THE    LAW    OF    CONSTRUCTIVE    CONTEMPT.  85 

tlie  ju(lg-e  on  the  bench,  "Yon  are  a  corrn[)t 
scoundrel.  You  have  been  bought  up  l>y  the 
adversai-y  of  my  client,  and  I  want  yon  to 
vacate  the  bench  and  let  an  honest  man  take 
your  place  to  try  my  case."  What  should  a 
selt'-resi)ecting  judg'e  do  in  such  case?  Would 
he  call  on  the  lawyer  to  prove  the  truth  of  the 
charge,  or  would  he  punish  him  instantly? 
Indeed  would  the  truth  or  falsity  of  the  chai'ge 
have  any  bearing  whatever  on  the  question  of 
the  indignity  thus  offered  to  the  law,  whose 
minister  for  the  time  being  the  judge  is?  A 
judge  that  would  parley  with  a  j)arty  thus 
offending  about  proof  of  the  charge,  would 
indeed  bi-ing  not  only  himself,  but  also  the 
majesty  of  the  law  into  contempt.  If  Shep- 
herd had  got  up  in  the  presence  of  the  coui't, 
and  had  charged  the  judges  with  corruption, 
there  would  then  have  been  no  calling  on  him 
for  proof  of  the  truth  of  the  charge.  The 
judges  would  have,  on  the  spot,  punished  him 
for  this  indignity  offered  to  the  court  in  its 
l)resence,  whether  the  charge  made  was  true 
or  false.  The  court,  in  such  a  case,  stands 
in  the  attitude  of  a  parent  towards  his  chil- 
dren, or  a  school  teacher  to\vards  his  pu|)ils, 
and  cannot  permit  its  honesty  to  be  called 
in  question,  oi*  become  a  subject  of  debate, 
when  it  is  publicly  sitting  for  the  transac- 
tion of  business.  Now  I  ask  if  a  libel 
upon  the  judges  in  a  newspaper  is  a  contempt 
of  court,  why  should  the  truth  of  the  charge 
be  made  a  subject  of  debate,  proof  or  in- 
quiry, any  more  than  in  case  the  same  charge 


8()  TlIK    LAW    OF    CONSTRUCTIVE    CONTEMPT. 

is  made  in  the  fnce  of  the  court  while  in  ses- 
sion V  None,  that  I  can  see  ;  and  the  fact  that 
the  court  was  willing,  in  this  case,  to  permit 
the  defendant  to  prove  the  truth  of  the  charge, 
if  he  could,  is  proof  tiiat  the  judges  themselves 
made  a  diKtinction  between  a  contempt  com- 
mitted in  the  presence  of  the  court,  and  one 
not  committed  in  its  presence.  If  Shepherd's 
offense  was  a  contempt  of  couit,  then  the  truth 
or  falsity  of  the  charge  he  made  was  imma- 
terial ;  but  if  his  offense  was  a  mere  libel  upon 
the  judges,  then  the  truth  or  falsity  of  the 
charge  should  have  been  submitted  to  a  jni-y, 
in  another  forum,  as  a  common  arbiter  between 
him  and  them.  The  court  erred,  in  my  hum- 
ble judgment,  in  holding  that  the  article  in 
question  was  a  contempt  of  court;  but  having 
thus  decided,  it  unquestionably  did  right  in 
refusing  a  jury  trial,  because  there  luas  Cloth- 
ing to  try  in  that  kind  of  a  case,  except  the 
fact  of  publication  ;  and  the  court  unquestion- 
ably erred  in  offeiing  to  permit  the  defendant 
to  prove  to  them  and  to  their  satisfaction, 
that  they  themselves  had  been  corrui)ted. 
Their  corruption,  i?i  a  contempt  case,  is  not 
an  issuable  fact  to  be  tried  in  any  way,  either 
before  the  court  or  jury,  and  if  the  court 
thought  it  was  an  issuable  fact  in  that  case, 
it  ought  to  have  sent  it  to  a  jury,  which  it 
could  have  done  by  ordering  Mr.  Shep- 
herd to  appear  before  the  Circuit  Court,  oi- 
some  justice  of  the  peace,  to  answer  for  libel. 
That  court,  in  the  very  natui'e  of  things,  was 
not  competent  to  try  such  an  issue,  which  in- 


Tin:    L.\\\     OF    CONSTRUCTIVE    CONTEMPT.  87 

volvcd  its  jiidi^i's.  But  tlie  court  went  fui'thcr, 
au'l  (ii'cl;iix''l  tliat  Ijccausc  the  defendant  stood 
mute  befoie  it  as  to  the  truth  of  tlie  chai'fii'e, 
and  had  challenged  the  jui'i.sdiction  of  tlie 
coui-t,  he  was  guilty  of  malice.  The  state- 
ment of  the  court  shows,  of  itself,  if  other 
|)i'oof  weie  wanting,  the  impro[)riety  of  the 
assum[)tion  of  jui'isdiction  in  the  case.  The 
Constitution  itself  declares  that  no  man  shall 
be  comi^elled  to  give  evidence  against  him- 
self, and  the  right  to  stand  mute  when  charged 
with  crime  has  been  I'ecognized  for  centuries. 
Standing  mute  is  equivalent  to  a  plea  of  not 
guilty;  but  Mr.  Shepherd  was  held  to  have 
added  malice  to  the  other  offense  charged  by 
standing  mute  as  to  its  truth,  but  challenging 
the  jui'isdiction  of  the  court  to  tr}'  him  in 
that  way  at  all. 

A  |)lea  of  not  guilty,  in  a  criminal  case, 
])uts  in  issue  every  provable  fact,  including, 
in  a  libel  case,  the  motives  of  the  publisher, 
and  (he  truth  of  the  charges  made.  So  Mr. 
Shepherd  virtually  put  in  issue  the  truth  of 
the  charge  made,  and  his  motives  in  making- 
it.  The  court,  in  its  opinion,  deems  this 
course  of  his,  and  his  failure  to  make  ''  the 
amende  honorable''''  \\\\d ''''  apologizing  like  a 
man'''  as  an  aggi'avation  of  his  offense,  add- 
ing malice  to  the  previous  wrong.  This  is 
not  the  view  the  Sujjreme  Court  of  Wisconsin 
took  in  the  case  of  State  ex  rel.  v.  Judges, 
supra,  in  regard  to  the  course  pui'sued  by  the 
accused  parties  there.  The  coui't,  in  that 
case,  held  that  if  they  were  honoral)le  men. 


88    THE  LAW  OF  CONSTRUCTIVE  CONTEMPT. 

and  not  mere  slanderers,  there  was  no  other 
course  open  to  the  accused.  Suppose  Shep- 
herd sincerely  believed  that  he  had  told  the 
truth,  would  it  have  been  honorable  for  him 
to  lie  to  the  court  about  his  opinion,  and 
apologize  for  what  he  had  done? 

TECHNICALITIES . 

The  court  goes  on  to  sa}'  that  Mi*.  Shep- 
herd's objections  were  technical.  Was  it 
technical  to  challenge  the  jurisdiction  of  the 
court,  and  to  demand  a  trial  by  jury?  I  think 
not.  But  suppose  these  objections  were  tech- 
nical, why  not  entertain  them?  Technical 
objections  in  favor  of  the  liberty  of  the  citi- 
zen ])revails  in  all  criminal  prosecutions,  and 
why  not  in  cases  of  contempt? 

TRIAL   BY    JURY. 

The  court  after  having  rightfully  decided 
that  the  defendant  was  not  entitled  to  a  tiial 
by  jury  in  a  contempt  case,  went  on  to  say 
that  if  a  jury  trial  had  been  awarded  him, 
there  was  nothing  to  be  tried  ;  the  coui't,  it  is 
said,  wos  the  judge  as  to  whether  the  article 
was  libelous  or  not,  and  its  publication  having 
been  admitted,  a  jury,  if  called,  would  have 
had  nothing  to  do  but  bring  in  a  verdict  by 
direction  of  the  court.  As  has  been  shown, 
there  w^ould  have  been  nothing  to  try  by  the 
jury  or  the  coiU"t  in  a  contempt  case,  but  the 
court  seemed  to  go  upon  the  theory  that  there 
was  something  to  try  by  calling  on  the  de- 
fendant for  proof  of  the  truth  of  the  charge. 
If  that  assumption  of  the  court  was  correct, 


THE    I-AW    or    rONSTKlCTn'K    COXTKMIT.  89 

tlic'ii  tlic  issues  should  have  Ijeeii  submitted  to 
;i  jui-y,  not  in  that  case,  but  upon  an  indiet- 
UKMit  or  iiifoi-ination  for  libel,  pi-esented  in  the 
usual  way. 

The  court,  on  this  [)hase  of  the  question, 
seems  to  have  forgotten  that  in  all  trials  for 
lil)el,  the  jui-y  shall  bt;  the  judges  of  the  law 
as  well  as  the  facts,  undei-  the  direction  of 
the  coui't ;  which  uieans  that  while  the  court 
may  instruct  the  jury  on  the  law,  the  jury  is 
at  liberty  to  taki'  its  own  view  of  the  law,  and 
render  a  verdict  aecoi'dingly.  In  case  Shejt- 
herd  had  been  j)i-oceeded  against  in  the  usumI 
way  for  a  ciiminal  libel,  the  jui-y,  in  his  ease, 
would  have  had  a  I'ight  to  say  the  ai'ticle  in 
question  was  not  libelous,  no  matter  what  we 
or  the  court  may  think  about  it.  And  again, 
the  court  seems  to  have  ovei'looked  another 
important  element,  involved  in  a  jni'V  trial, 
and  that  is,  the  amount  of  puni>hment  to  be 
inHicted.  The  court  fixed  the  fine  at  five 
hundred  dollars.  A  jury,  if  they  found  Shep- 
herd gnilty  of  a  criminal  libel,  might  have 
fixed  the  (ine  at  one  dollai',  or  some  other 
nomimil  amount .  And  this  is  an  important, 
and  not  a  technical  right  of  an  accusi'd  paity. 
But  really  all  the  obstM-vations  of  the  court 
on  this  subject,  and  these  observations  of 
mine,  add  additional  rt'asons,  why  the  coui-t 
made  its  fatal  eiTor  in  assuming  jurisdiction 
in  the  case  at  all,  hut  that  some  trial  court,  if, 
as  Jjord  (.'ampbell  remarked,  a  j)rosecution 
foi*  a  libel  u|)on  the  judges  be  necessary,  in 
any  event,  should  ha\i'  tried  the  case  in  the 
regular  course. 


i)0  THE    LAW    OF    CON>STKUCTlVK    CONTEMPT. 

The  history  of  this  case  emphasizes  the  rea- 
sons why  the  people,  for  one  hnndred  and 
fifty  years,  have  fiercely  contested,  and  con- 
test now,  the  power  of  the  coni-ts  to  |:)nnish, 
as  for  a  contempt,  a  newspaper  pnl)lication. 
The  people  have  in  the  past  fonght,  and  fight 
now  for  the  fi'eedom  of  speech  and  of  the 
press,  and  they  have  a  deep  conviction  that 
the  judges  as  well  as  the  governors  and  legis- 
lators, ai-e  their  mere  servants  and  that  the 
acts  of  all  should  be  subjected  to  the  scrutiny 
of  the  press  especially.  Publicity  of  official 
acts  has  become  a  peculiar  demand  of  this  age, 
and  what  a  glorious  work  the  public  press  has 
wrought  lately  in  exposing  corruption  in 
official  life,  not  only  in  Missoui'i,  but  in  the 
nation,  nay,  in  the  countries  of  Europe.  But 
it  is  said  no  one  has  a  right  to  libel  an  officer. 
That  is  true,  but  I  believe  with  Jefferson, 
that  where  an  abuse  cannot  be  destroyed 
without  destroying  the  use  of  a  privilege, 
the  abuse  should  be  tolerated,  "  where  reason 
is  left  free  to  combat  it."  This  is  the  theory 
of  the  Theodosian  law  referred  to  by  the  court 
in  the  Shepherd  case.  The  exercise  of  the 
power  to  punish  for  contempt  for  a  newspa- 
pei'  publication,  while  it  might  destroy  the 
abuse,  would  also  destroy  the  use  of  the  privi- 
lege of  free  speech,  and  a  free  press.  As  far 
back  as  King  John  it  was  declared  by  INIagna 
Charta  that  a  party  charged  with  crime  should 
be  tried  by  a  jui'y  of  the  vicinage.  But  in  a 
case  of  contempt,  not  only  the  right  to  be 
tried  by  a  jury  is  denied,  but  the  right  to  be 


TllK    LAW    OF    CONSTliL('Tl\  K    (  <  (NTK.MrX.  Jil 

ti'ied  ill  tlu'  county  is  denied  also.  'Phis  last 
I'iirht  has  always  been  deemed  essential.  Oin* 
fathei-s  made  the  deprivation  of  that  I'ig-htone 
of  the  "-rounds  of  the  indictment  i))"efei'red  by 
tliem  against  Geor<j;-e  III,  in  tlu-  Declai-ation 
of  Inde[)endence.  Shephei-*)  live(J  in  AVai"- 
rensl)ur<>-,  Johnson  County.  The  Supreme 
Court  sits  in  Jeffei'son  City,  in  Cole  County, 
a  hundred  miles  away,  and  he  was  taken  fi-om 
his  home,  where  he  published  his  pa|)er,  to 
Jefferson  City,  and  there  his  case  was  dis- 
posed of.  If  the  court  had  the  power  to 
take  him  that  far  to  be  tried  for  a  libel  upon 
it,  then  it  can  take  citizens  from  Dunklin 
County,  a  distance  of  three  hundred  miles, 
and  try  them  foi'  the  same  thiny-,  away  from 
their  neighbors  aufl  those  who  know  them,  and 
does  it  require  any  great  stretch  of  the  im- 
agination to  believe  that  many  publishers,  not 
knowing  the  line  of  demarkation  between 
legitimate  and  illegitimate  criticism  of  the 
court  and  judges,  i-ather  than  take  any  chances 
of  being  dragged  off  a  long  distance  to  be 
tried  by  judges  whom  he  has  been  chai"ged 
with  gi'ievousl}'  wronging,  will  not  go  as  far 
as  they  really  have  a  I'ight  to  g>)V  Thus  the 
use  of  the  privilege  of  a  fi"ee  i)ress  would  be 
destroyed,  in  trying  to  desti'oy  its  abuse. 

The  court  thought  the  power  it  exei'cised 
in  the  She[)iierd  case  was  necessai'y  for  the 
protection  of  society  ;  but  if  its  rulings  shall 
have  the  effect  to  censor  the  press,  and  i)re- 
vent  its  "'oino'  as  far  as  it  has  a  rij>ht  to  "o, 
may    not    society    diift     buck,    imperceptibly. 


92  THK    LAW    OF    CONSTRUCTIVE    CONTEMPT. 

into  a  despotism,  and  be  more  harmed  than 
by  an  occasional  libelous  criticism  of  the 
ministers  of  the  law?  And  besides  that,  the 
ordinary  remedies  for  criminal  libel  ou^ht  to 
be  sufficient  to  keep  the  press  within  due 
i)ounds  without  the  exercise  of  a  powei'  the 
people  believe,  and  have  always  believed,  to 
be  unjust  and  usurped. 

VII. 

The  Court's  Error  and  the  Remedy. 

Thnt  the  decision,  in  the  Shepherd  case,  is 
pernicious,  and  contravenes  fundamental  prin- 
ciples of  liberty,  there  can  be  no  question. 
That  the  courts  have  the  power  to  set  aside 
statutes  on  the  ground  that  they  are  repug- 
nant to  the  Constitution,  there  is  now  likewise 
no  question,  though  a  hundred  years  ago  that 
proposition  was  not  conceded  by  any  means. 
The  three  departments  of  government  have 
always  been  considered  co-ordinate  and  equal, 
;ind  wei'e  established  by  the  Constitution  as 
checks  upon  each  other,  and  the  power  of  the 
courts  may  be  carried  too  fai",  and  become  a 
menace  to  free  institutions,  and  when  that 
occurs,  it  is  the  right  —  nay,  the  duty  of  the 
othei'  two  departments,  which  peculiarly  rep- 
resent the  popular  will,  to  resist  any  encroach- 
ment upon  their  power  which  may  impei'ilthe 
fundamental  rights  of  man,  by  all  the  consti- 
tutional and  peaceful  means  attheir  command. 
This  has  often  been  done  in  tlie  past. 

Ordinaiily  where  the  courts  have  set  aside 
statutes,  enacted  l)y  the  legislative  depart- 
ments  (the  plui'al  is  here  used    because  the 


Tin;    LAW    OF    CONSTKUCTIVK    f:ONTKMl'T.  H^^ 

executive  forms  a  part  of  tlie  hnv-innkiiii;- 
]K)W(M'),  it  has  been  to  vindicate  the  i)iibiic 
and  private  rights  of  the  |)eopIe  ;  but  in  the 
Sliepherd  case  that  was  not  the  effect.  As 
has  been  shown,  the  assumption  of  jurisdiction 
there  lind  tiie  effect  to  deprive  a  citizen  of  a  fun- 
damental, constitutional  right,  the  i-ight  of  trial 
by  jury  of  the  vicinage,  which  the  other  two 
depai'tmeuts  had  tried  to  guaranty,  and  which 
they  thought  they  had  guarantied  to  him.  In 
that  case  the  issue  is  sharply  made  between 
the  legislative  power  and  the  judicial  power, 
narrowed  down  to  the  simj)le  question  whether 
the  legislative  departments  can  interpose  by 
legislation  to  protect  the  citizens  of  the  State 
by  restricting  and  limiting  the  power  of  the 
courts,  whei-e  the  contest  is  between  the  I'ights 
of  the  citizens  on  one  side,  and  the  power  of 
the  courts  on  the  other.  The  Supreme  Court, 
and  the  judges  of  that  coui't,  were  as  much 
parties  in  interest  in  the  Shepherd  case,  as  the 
prosecuting  witness  is  a  party  in  interest  in 
any  criminal  prosecution,  and  ought  that 
court,  according  to  the  eternal  principles  of 
i-ight,  have  set  in  judgment  in  their  own  cause? 
Lord  Campbell  said  such  a  position  of  a  judge, 
in  such  case,  was  an  invidions  one,  and  it  is 
the  universal  opinion  of  mankind  that,  no 
mattei"  how  exalted  the  ministers  of  the  law 
may  be,  they  cannot  entirely  free  themselves 
fi'om  the  feeling  that  they  have  been  injured^ 
and  that  thetj  must  vindicate  themselves. 

It  must  not  be  forgotten  either  that  accord- 
ing to  the  decision  in  the  Shepherd  case,  the 
sole   measure  of  the  power  of  the  courts  in 


94  TIIK    LAW    OF    CONSTRUCTIVE    CONTEMPT. 

contempt  cases  is  the  discretion  of  theii" 
judges.  ^Fhat  is  the  power  possessed  by  the 
Czar  of  Russia,  a  power  measured  alone  by 
his  own  discretion,  and  with  him,  we  call  it  a 
despotism,  absolutism,  tyi-anny.  Such  a 
l)ower  as  that  has  been  resisted  by  the  Anglo- 
Saxon  races  for  centuries,  and  is  hateful  to 
the  minds  and  aspirations  of  a  fi'ee  peo})le, 
and  we  had  reposed  in  the  fond  assurance  foi- 
neai'ly  a  century,  that  no  such  principles  had 
found  lodgment  in  our  institutions,  and  the 
great  question  is  presented  to  the  people  of 
our  State  whether  there  is  any  i-emed}  for  tiie 
assertion  of  this  pi'inci)>le  by  the  court,  and  if 
so,  what  it  is.  The  legislative  departments, 
perfectly  disintei-ested,  declared  ovei'  sixty- 
five  years  ago  that  the  courts  should  not  have 
the  power  to  try,  without  the  intervention  of 
a  jury,  questions  in  which  the  judges  were 
pei-sonaliy  interested,  and  now,  after  the  lajise 
of  so  long  a  time,  the  court,  an  iiitei-ested 
party,  says  the  other  departments  had  no 
power  to  impose  any  such  restraints,  or,  for 
that  matter,  any  restraints  at  all,  on  it.  Mr. 
Shephei'd,  though  he  Inul  been  dei)i'ived  of 
his  property  by  the  exercise  of  a  j)owH'r  which 
was  illegal,  was  uttei-ly  hel[)less.  The  law, 
pi'ovided  by  the  legislature  foi'  his  protection, 
was  set  aside,  and  there  he  stood  in  the  i)res- 
ence  of  the  judges,  whom  he  was  accused  of 
libeling,  without  the  right  to  have  this  case 
sent  for  trial  before  another,  and  imi)ai'tial 
tribunal  aided  by  a  jury,  and  without  the 
right  of  appeal  to  a  higher  court,  foi'  he  was 
then   before    the   highest    court   in   the  State. 


THK    LAW    OK    CONSTRL'CTIVK    CONTKMIT.  '.♦5 

III  that  ca8L'  the  court  said  that  it  would  not 
"  tolei'atc  any  iutert'ereiicc  hy  a  c<^-ordinate 
Ijranch  of  the  government  or  hy  any  one  else 
with  the  i)owers  and  duties  and  preiogatives 
of  this  court."  That  is  not  the  language  of 
an  equal  to  an  equal,  but  of  ii  superior  to  an 
inferior.  The  legislatui'e  on  its  part  has  an 
equal  I'ight  to  asseit  tiiat  it  will  not  tolerate 
any  interference  by  the  judiciary  with  its 
powers,  duties  and  prerogatives.  Then  what? 
The  peoj)le  must  answer. 

The  court,  after  having  set  aside  the  con- 
temi)t  statute  of  this  State,  which  had  abro- 
gated the  rules  of  the  common  law  ap[)licabK' 
to  certain  classes  of  contempt,  proceeded  to 
incorporate  those  rules  of  that  law  into  the  ju- 
risprudence of  this  State.  Hlackstone  is  cited 
and  what  he  says  is  construed  to  mean  that 
every  unjust  criticism  of  the  court  acting  in  its 
judicial  capacity'  is  a  contempt  whethei*  such 
criticism  be  in  ivlation  to  a  i)ending  matter  or 
not.  The  coui't  lays  down  the  broadest  and 
most  comprehensive  rule  of  the  connnon  law 
as  follows  :  "In  Kex  v.Almon,  Wilmot\sNotes 
of  Opinions  and  Judgts.,  p.  23.S,  it  was  judd  to 
be  contempt  of  court  and  a  libel,  punishable  l)\- 
attachment,  to  publish  a  i)ain|)hlet  asserting 
that  judges  have  no  i-ight  to  issue  attachments 
foi"  libel  upon  themselves  and  dein'ing  that 
i-ellections  upon  individual  judges,  are  con- 
tempts of  court."  Many  other  cases  are  citt'(i 
by  the  court  but  this  case  goes  to  the  extreme 
limit  of  the  common  law  on  the  subject  of 
contempt  and  if  that   be  the   law   in    ^Nlissouri 


d6  THE  LAW  OF  CONSTRUCTIVE  CONTEMPT. 

the  coui'ts  are  bound  by  no  restraints  and  if 
the  legislature  has  no  powei-  to  set  bars  and 
doors  as  to  contempts  and  say  to  the  courts 
"Hitherto  shalt  thou  come — but  no  fur- 
ther" then  indeed  are  the  people  of  this  State 
subjected  to  a  most  extraordinary  and  dan- 
gerous jurisdiction  both  as  (o  the  subject-mat- 
ter of  contempts  as  well  as  the  extent  of  the 
punishment  to  be  inflicted.  The  court  im- 
posed a  fine  of  $500  on  Mr.  Shepherd,  ten 
times  as  large  as  the  statute  of  the 
State  prescribed  and  the  court  cited  Reg. 
V.  Skipworth,  12  Cox  Crim.  Cases,  371  (also 
an  English  case)  in  which  the  accused  was 
fined  five  hundred  pounds,  equal  to  $2,500,  so 
that  the  court  can  go  to  that  extent  at  least 
which  is  fifty  times  larger  than  that  prescribed 
by  the  statute.  But  the  court  having  freed 
itself  fi'om  all  statutory  resti'aints  is  not  lim- 
ited to  $2,500  or  the  maximum  fine  that  may 
be  imposed  in  a  contempt  case  but  it  can,  at 
its  discretion,  impose  any  larger  sum  it  sees 
fit,  nor  is  the  extent  of  the  imj)risonment  that 
may  be  inflicted  in  the  case  limited  otherwise 
than  by  the  discretion  of  the  court.  That  the 
court  intended  to  make  the  rules  laid  down  in 
the  cases  it  cited  as  the  law  of  this  State  is 
made  manifest  by  the  excerpt  from  its  opin- 
ion :  "  Thus  at  great  pains  and  tedious  length 
the  cases  bearing  upon  the  matters  involved 
in  this  case  have  been  collected  and  digested 
ivith  the  purpose  and  to  the  end  that  the  peo- 
ple may  know  the  grounds  upon  which 
judgment  in  this  case  rests  and  so  that  all 


tin:   I  AAV  or  (ONSTiiicmi:  (omkmit.       97 

inaij  hnoic    the  law    and    arold  heiiKj  (juiJtii 
of    like    offenses,  or  else  offend  knoio'uHihj, 
and  hence  invite  punishment.''^      Accoiding 
to  the  definition  of  the  legislative  power  hei'e- 
tofore  given,  is   not  that  excerpt  a  legishitive 
act  rather  than  a  judicial  determination  of  a 
concrete    case?     The    court   having  set  aside 
our  ancient  statute  which  had  prescribed  the 
law  of  contempt,  the  court,  it    must  be  pi'e- 
sumed,  felt  tiie  necessity  of  stating,  "  at  great 
pains  and  tedious  length,"  the  rules  of    law 
which  it  intended  to  substitute  in  lieu  of  the 
abi'ogated    statute,  so    that  the  people  might 
know   what    law  it  would  I'ecognize  in  future 
cases.    Wh}^  it  applied  these  new  rules  of  law, 
which  the  court  declares  are  in  force  in  Mis- 
souri, to  Mr.  Shepherd's  act,  making  them  ex 
post    facto  as  to  him  and  others  violating  a 
plain    [)i'ovision   of  our    Constitution,    is    not 
stated.     In  Older  to  cover  the  whole  ground 
on  the  subject  of  contempts,  so  that  "  the  peo- 
ple might  know  the  law  and  avoid  being  guilty 
of  like    offenses,"  the  court  did  not  coniine 
itself  to  the  point  in  judgment,  w'hich  was  the 
criticism  of  the  court  in   a    i)ending  case  but 
it    went  outside    of  the    record   and  disclosed 
what  the  law  shall    be  for  a  criticism  of  the 
court  in   cases  wholly  disi)osed  of.     Take  the 
whole  opinion  of  the  court  with  the    above  ex- 
ceipt  from  it  and  there  is  no  escape  from    the 
conclusion  that  the  court  exercised  the  legisla- 
tive power.     The  j^ower  exercised  by  the  court 
was  legislative  in  two  aspects.    It  was  legisla- 
tive because  it  virtually  rei)ealed  a  statute  and 


98  THE    LAW    OF    CONSTRUCTIVE    CONTEMPT. 

in  the  second  place  it  was  legislative  in  that  it 
re-enacted  certain  common  law  i-ules  which  the 
legislatnre  had  declared  should  not  prevail  in 
this  State.  The  rules  of  the  common  law  which 
the  court  declares  to  be  in  force  hei'c  have  all 
the  insignia  of  laws,  which  can  be  made  only 
by  the  General  Assembly  under  our  Constitu- 
tion. They  are  emphaticall}^  rules  of  civil 
conduct  of  general  and  universal  application. 
The  court,  therefore,  in  my  humble  judgment 
nnquestionably  violated  the  ver}^  provision  of 
the  Constitution,  wdiich  it  claims  the  legisla- 
ture had  violated  in  the  enactment  of  the 
contempt  statute. 

It  is  unquestionably  the  pi'ovince  of  the 
legislative  power  to  enact  and  publish  the  law 
of  contempt  so  the  people  may  know  what 
it  is  and  avoid  its  violation.  But  the  court 
denies  the  power  of  the  legislature  to  do  that 
and  proceeds  to  do  it  itself.  Must  the  legisla- 
ture stand  dumb  and  helpless  in  the  presence 
of  a  co-equal  and  co-ordinate  branch  of  the 
State  government? 

And  again  it  is  asked  if  there  is  a  remedy 
for  such  an  un-American  situation  in  our 
State.     If  so,  what  is  it? 

The  judges  can  l)e  impeached  but  this  rem- 
edy has  not  generally  been  found  practicable 
because  the  judges  cannot  be  convicted  with- 
out proof  that  they  willfully  usurped  power 
and  this  is  hard  to  do. 

The  Ceneral  Assembly  may,  as  a  protest 
against  the  exercise  of  jurisdiction  in  this 
case,  refund  the  fine   imposed  on  Shepherd, 


TlIK    LAW    OF    CONSTRUCTIVE    COXTKMPT.  91) 

following-  the  example  net  by  Conf;;Te.ss  in  re- 
funding the  fines  imposed  under  the  Sedition 
Law. 

And  again  the  court  may  be  called  on  to 
overrule  this  decision  and  retui'ii  to  correct 
principles. 

Or  a  constitutional  amendment  can  be 
adopted,  but  if  this  be  done  the  pi-eamble  to 
it  ought  to  state  that  the  legislature  had 
always  possessed  the  power  to  restrict  the 
courts  in  contempt  cases  and  the  amendment 
is  adopted  simply  as  declaratory  of  what  the 
law  has  always  been. 


TIIK    I-AW    OF    CONSTRUCTIVE    CONTEMPT.         101 


INDEX. 

Page 

Preliminary  Statement 5  et  aefj. 

Statement  of  Case 1  et  seq. 

Author's  Views  in  1884 8  et  seq. 

Question  to  be  discussed  in  this  Review 17  et  seq. 

History  of  Question  in  England  prior  to  1820  19  et  seq. 

Fox  Libel  Act 21  et  seq. 

Lord  Erskinc's  Views 22  et  seq. 

History    of   Question  in  American   Colonies 

prior  to  1820 24  et  seq. 

In  Pennsylvania  ..    24  et  seq. 

In  New  York 26  et  seq. 

Alien  and  Sedition  Laws 2G  et  seq. 

History  of   Question  in  Missouri 27  et  seq. 

History  of  Question  from  1820  to  1835 29  et  seq. 

History  of  Question  from  1835  to  1875 33  et  seq. 

History  of  (.Question  from  1875  to  1903 36  et  seq. 

The  Judicial  Power  over  Contempts  Conferred 

by  the  Constitution  of   1820  in  the  Courts  39  et  se(j. 

The  Legislative  Power  under  the  Constitution 

of  1820 47  et  seq. 

The  Judicial  Power  under  the  Constitution  of 

1875 61  et  seq. 

The  Legislative  Power  under  the  Constitution 

of  1875 61  et  seq. 

Pvssential  Attributes  of  Courts 67  et  seq. 

Judicial  and  Legislative  Powers  under  Con- 
stitution of  1820 Sd  et  seq. 

Adjudged  Cases 72  et  seq. 

The  Issue  of  Fact  in  a  Conterai)t  Case 83  et  seq. 

The  Court's  Error  and  the  Remedy 1)2  et  seq. 


102   THE  LAW  OF  CONSTRUCTIVE  CONTEMPT. 


APPENDICES  —  CONTENTS. 

APPENDIX  A. 
The  Zenger,  McDougal  and  Crosswill  cases  in  New 
York 103 

APPENDIX  B. 
The  McKean  and  Shippen  cases  in  Pennsylvania 115 

APPENDIX  C. 
The  Alien  and  Sedition  Laws,  History  of 123 

APPENDIX  D. 
Mathew   L3'on's  case   under  the  Sedition  Law  and 
John  Wilkes'  case  in  England 137 

APPENDIX  E. 
Anthony  Haswell's  case  under  the  Sedition  Law 144 

APPENDIX  F. 
Cooper's  case  under  the  Sedition  Law 149 

APPENDIX  G. 
Callender's  case  under  the  Sedition  Law  and  Chase's 
Impeachment 159 

APPENDIX  H. 
Peck's  Impeachment  Trial 169 

APPENDIX  I. 
The  Contempt  Statute  of  Missouri 175 

APPENDIX  L. 
Opinion  of  the  Missouri  Supreme  Court  in  the  Shep- 
herd case 177 


APPENDIX  A. 

BATTLES  FOR  THE  FIIKEDOM  OF  THE  PRESS  IN 
NEW  YORK. 

zengek's  case. 
In  our  history  numy  eases  of  thrilling  in- 
terest, illustrative  of  tliis  conflict  and  (jf  the 
evolution  of  a  free  pi'ess  and  an  independent 
judiciary  and  government,  can  be  found.  The 
first,  among  these,  is  that  of  John  Peter  Zen- 
ger,  in  the  city  of  New  York,  August  ith, 
1735.  As  it  created  the  most  intense  interest 
in  the  ])ublic  mind,  the  result  of  which  was 
•'  the  dawn  of  the  spirit  of  liberty,  which 
afterwards  revolutionized  America,"  the  story 
of  Zenger  and  his  trial  will  be  an  intei'esting 
one  at  a  time  when  the  contest  between  the 
coui'ts  and  the  press  is  made  prominent  by  the 
ti'ial  of  the  editor  of  the  Warrensburg  Stan- 
dard-Herald. Zenger  was  born  in  Ger- 
many and  was  brought  to  this  country  in  the 
reign  of  Queen  Anne  at  the  charitable  ex- 
pense of  the  crown  of  England.  In  1734, 
William  Cosby  was  governor  of  T*^ew  York 
and  two  papers  were  published  there,  one, 
the  Gazette,  an  administration  organ,  by 
William  Bradford,  and  the  other,  in  opposi- 
tion, the  Xew  York  JotiriiaJ,  by  Zenger. 
Several  articles  were  published  in  Zenger's 
paper,  severely  criticising  the  administration 
of  affairs  in  ^ew  York,  and  Governor  Ross, 
on  November  G,  1731:,  issued  two  proclama- 
tions, one  of  which  I'ecited  that  Zenger's 
paper  had  contained  articles  rellectiiig  on  the 

(103) 


104       THK    LAW    OF    CONSTRUCTIVE    CONTEMPT. 

Ico-islatiire,  "  the  most  considerable  persons  in 
the  most  distingnished  stations  in  the  Prov- 
ince and  npon  His  Majesty's  lawful  and  riiiht- 
ful  government  and  just  prerogative,"  which 
were  calculated  to  stir  up  "  factions,  tumults 
and  seditions  "  among  the  people,  and  offer- 
inji:  a  reward  of  £^0  to  any  one  who  would 
discover  the  writers  thereof:  the  other 
offered  a  reward  of  £'20  for  the  discovery 
of  the  author  "  of  two  late  scandalous  songs 
or  ballads,  highly  defamatory  of  the  admin- 
istration of  His  Majesty's  government." 
Zenger  was  arrested  on  Sunday,  Novem- 
ber 17,  1734,  for  publishing  an  alleged  libel, 
which  was  in  substance  that  "  the  people 
of  this  City  (New  York)  and  Province  think, 
as  matters  now  stand,  that  their  liber- 
ties and  properties  are  precarious  and  that 
slavery  is  like  to  be  entailed  on  them  and  their 
posterity,  if  some  past  things  be  not  mended." 
He  was  put  in  jail  and  denied  the  use  of  ink,  pen 
and  paper  or  the  libert}^  to  speak  to  or  see  the 
people.  He  was,  on  his  application,  taken 
before  the  Chief  Justice,  on  writ  of  Habeas 
Corpus,  on  November  25,  where  it  was  ad- 
judged that  he  might  be  bailed  in  the  sum  of 
$2,000,  and  in  case  he  could  not  find  bail  be 
permitted  to  have  pen,  ink  and  paper  and  to 
speak  to  his  wife  and  friends,  "  through  the 
hole  in  the  door"  of  the  prison.  He  failed 
to  give  bond  and  he  wrote  in  jail  for  his  paper 
and  its  publication  continued.  The  Journal, 
containing  the  alleged  libelous  matter,  was 
ordered  to  be  burnt  by  the  common  hangman, 


THE  LAW  or  CONSTKUCTIVE  CONTEMPT.    l()5 

and  the  mayor  and  Ihe  inagisti'atcs  of  the  city 
were  directed  to  be  [)resent  to  witness  this 
holocaust  of  the  press.  These  officers  as  well 
as  the  members  of  tlie  Provincial  Asseml)ly, 
however,  refused  to  attend.  Tliis  enraged  the 
governor  still  more  and,  after  nine  months 
hnprisonmcnt,  Zenger  was  brought  to  trial  on 
August  -1,  17o5,  before  two  judges,  one  of 
whom  had  been  appointed  by  the  governor 
alone,  without  the  sanction  of  the  council,  and 
Zenger's  attorneys  objected  to  his  being  tried 
before  a  court  so  constituted,  which  the 
judges,  including  the  judge  objected  to,  held 
to  be  a  contempt  of  court  and  the  attoi'uej's 
were  summarily  •'  thi'own  over  the  bar,"  in  the 
parlance  of  those  times,  i.  €.,  disbai'red. 

The  friends  of  this  editor  were  determined, 
hovvever,  he  should  be  defended  and  they 
quietl}'  employed  Andrew  Hamilton,  the  cel- 
ebi'ated  jurist  of  Philadelphia,  for  that  puv- 
Dose.  At  that  time  the  truth  of  the  charoe 
alleged  to  be  libelous  could  not  be  given  in 
evidence  as  a  defense  and  the  court  refused  in 
this  case  to  allow  Zenger  to  prove  the  tiuth 
of  the  charges  he  had  made  in  the  Journal 
and  no  evidence  of  that  character  was  adduced  ; 
and,  as  the  publication  of  the  objectionable 
articles,  songs  and  ballads,  was  admitted  there 
seemed  to  be  no  escape  for  the  accused  ;  but 
Hamilton  was  equal  to  the  emergency.  His 
speech  to  the  jury  was  the  most  remarkable 
and  unique  one  in  the  history  of  jurisprudence 
in  this  country.  He  argued  to  the  jury  tiiat 
they  were  the  judges  of  the  law  as  well  as  the 


10()         THE    LAW    OF    CONSTRUCTIVE    CONTEMPT. 

fact  and  as  theij  had  been  taken  from  the 
viciiiity,  in  lohich  the  puhlications  had  been 
made^  they  ivere  supposed  to  have  been 
selected,  because  they  "  had  the  best  Imoiol- 
edf/e  of  the  fact  to  be  tried^  He  insisted 
that  if  tiie  jurors  believed  the  publications  to 
be  true,  they  should  acquit  the  defendant. 
He  made  an  eloquent  plea  for  the  freedom  of 
complaint  and  remonstrance  against  gov- 
ernmental action  and  of  the  freedom  of 
the  press.  He  thought  it  of  the  highest 
importance  to  the  well-being  of  society,  that 
the  freedom  to  criticise  the  action  of  the  ruler, 
who  brings  his  personal  feelings  and  vices 
into  his  administration,  by  which  the  people 
find  themselves  affected,  ought  to  be  recog- 
ized  and  he  added  that  "  all  the  high  things, 
that  may  be  said  in  favor  of  rulers  and  of 
dignities  upon  the  side  of  j^over,  will  not 
stop  the  2)eo2)le''s  mouths,  ivhen  they  feel  them- 
selves oppressed.''''  The  judges  instructed  the 
jur}'  "  that  as  the  defendant  had  confessed 
the  publication  of  the  words,  the  only  ques- 
tion for  them  was  whether  the  words  were 
libelous  and  as  this  was  a  question  of  law 
they  could  safely  leave  it  to  the  court."  The 
jur}^,  however,  returned  a  verdict  of  not  guilty, 
whereu[)on  the  crowds  filled  the  court  room 
with  shouts.  The  chief  justice  admonishedthe 
audience  andthreatenedthe  leader  withim])ris- 
onment,  whereupon  a  son  of  Admiral  Nori'is 
declared  himself  the  leader  and  called  for 
more  cheers,  which  were  repeated  with  a  will. 
Mr.   Hamilton    was    royally  entertained  at  a 


THK    LAW    OF    CONSTKLCTIVE    CONTEMIT.         107 

(3anquet,  and  on  his  starting-  to  Philadelpiiia 
a  salute  was  fired,  lie  was  presented  witii 
the  freedom  of  the  city  by  the  Common  Coun- 
cil "  foi"  the  I'emai'kable  service  done  by  him 
to  the  city  and  colony  by  his  learning-  and 
generous  defense  of  the  rights  of  mankind 
and  the  liberty  of  the  i)i-ess."  This  freedom 
of  tlie  cit}'  was  inscribed  on  a  gold  box  pre- 
sented to  him.  Thus  terminated  this  remai'k- 
able  case,  which  sounded  the  keynote  for  the 
revolutionary  spii'it  then  just  beginning  to 
manifest  itself. 

Here,  again,  should  be  noted  the  contrast 
between  the  methods  of  the  past  and  the  pres- 
ent. It  seems  the  judges  at  the  trial  of  this 
case  did  not  interpose,  nor  did  the  govern- 
ment's attorney  interpose  any  objection  to 
this  course  of  argument  of  Mr.  Hamilton  to 
the  jui'v  —  an  argument  which  not  only  left 
to  them  all  questions,  both  of  law  and  fact, 
but  also  authorized  them  to  find  the  fact  from 
their  own  personal  knowledge  if  they  had 
any.  Such  an  argument  as  that  at  this  time 
would  not  be  tolei-ated  anywhere  in  our  land. 
Thus,  while  the  judges  who  tried  this  case 
strained  the  doctrine  of  libel  beyond  what  is 
now  allowable,  were  more  libei-al  towards  the 
defense  in  permitting  the  powers  of  the  jui-y 
to  be  enlarged  beyond  wdiat  the  courts  would 
allow  to-day.  This  trial  left  a  lasting  impres- 
sion on  public  opinion,  for  Governor  Koss 
having  died  in  17H5,  Bi-adford  found  it  neces- 
sary to  publish  a  long  address  to  the  j)eo[)le 
in   iiis    [)ai)er,  the    Gazette,  in    defense  of,  or 


lO'S       TllK    LAW    OF    CONSTRUCTIVE    CONTEMPT. 

rather  apolo<4*y  for  the  wa}'  he  liad  conducted 
it  as  an  organ  of  the  adnihiisti'ation. 

The  Journal,  published  by  this  intrepid 
])ioneer  of  freedom,  was  small  in  size,  and 
printed  on  much  worn  pica  type.  There  were 
but  few  advertisements  in  it,  i)ut  among  the 
few  there  was  this  which  will  no  doubt  be  read 
by  the  public  of  to-day  with  interest  as  well 
as  amusement:  "To  be  sold  by  Petei-  Lynch 
near  Rutgers'  Brewhouse  very  good  orange 
butter.  It  is  excellent  for  gentlewomen  to 
comb  their  hair  with.  It  also  cures  children's 
sore  heads."  Zenger  continued  to  publish 
the  paper  till  his  death  in  174G,  when  his  wife 
took  charge  of  it  and  managed  it  for  a  time 
but  it  soon  fell  to  a  son,  John  Zenger,  who 
pubHshed  it  till  1752,  when  it  died  for  want  of 
support.  A  short  time  before  its  demise  the 
following  curious  item  appeared  in  its  col- 
umns: "The  Country  subscribers  ai'e  earn- 
estly entreated  to  send  in  their  arrears;  if 
they  do  not  pay  promptly,  I  shall  leave  off 
sending  the  paper  and  try  to  recover  my 
money  otherwise.  Some  of  these  easy  sub- 
scribers are  in  arrears  for  more  than  seven 
years.  After  serving  them  so  long,  I  fancy 
it  is  time,  and  high  time,  that  they  should  re- 
pay me  my  advances  ;  for  the  truth  is  —  and 
the}'  may  believe  me — I  have  worn  my 
clothes  threadbare. 

N.  B.  Gentlemen:  If  you  have  no  money 
to  spare,  still  think  of  your  printer  when  you 
have  read  this  advertisement  and  thought  on 
it.     You    can     not    do    less  than  say  'come 


TIIK    LAW    OF    CONSTRUCTIVE    (:ONTEMl»T.  109 

-vvifi''  (I  address  my8e'U' principally  to  niairied 
folk,  but  let  bachcloi's  take  it  to  heart  also) 
'  come  wile,  let  us  send  the  |)oor  printei"  some 
floiiV,  or  a  few  hams,  butter,  cheese,  ])ouItrv, 
etc' 

In  the  meantime  while  1  am  your  obedient 
servant,  Joiix  Zkx(;j:k." 

But  isi  spite  of  this  pathetic  appeal  and  in 
spite  of  tlie  great  service  the  Journal  hud  I'cn- 
dered  the  pi-ovince  and  indeed  mankind,  it 
was  suffered  to  die,  thus,  furnishing-  an  im- 
pressive instance  of  the  ingratitude  of  the 
peoj)le  towai-ds  those  who  sacrifice  and  suffer 
much  for  them  and  for  the  advancement  of 
tlieir  interests,  and  besides  that,  Zenger  has 
beeii  foigotten  by  posterity,  to  which  he  left 
such  a  i-ich  legacy.  Zenger  !  AVho  is  Zen- 
gerV  the  present  generation  may  ask.  Zen- 
ger was  a  poor  German  boy,  who  came  to  this 
countiy  two  centuries  ago,  at  public  expense, 
and  no  doubt,  like  thousands  of  others  of 
that  period,  aftei*  I'eaching  our  shores,  was 
sold  at  auction,  for  a  time,  to  repay  that  ex- 
pense. He  published,  what  he  considered  he 
had  a  right  to  publish,  the  truth  al)out  public 
men  and  public  affairs,  for  which  he  was  im- 
})risoned  nine  months  in  the  common  jail  away 
fi'om  wife  and  home  but  his  dauntless  spirit 
yielded  not  nor  did  he  cease  to  defend  him- 
self and  the  freedom  of  the  press  with  vigor 
and  courage  while  in  durance  vile.  He  con- 
tended not  for  the  right  to  slander  and  libel 
the  govei-nment  and  its  oiHcei's  but  he  did 
claim  the  right  to  lay  before   the  people  the 


110   THE  LAW  OF  CONSTRUCTIVE  CONTEMPT. 

truth  in  reg-ard  to  both  and  he  waged  a  fierce 
battle  and  even  went  to  prison  in  defense  of 
that  right.  He  won  a  glorious  victory  and 
though  the  principle  for  which  he  fought  was 
not  embodied  in  the  law  of  Kew  York  for 
three  quarters  of  a  centur}'  after  that,  yet  his 
struggle  and  his  martyrdom  aroused  a  spirit 
of  freedom  that  has  gone  on  from  victory  to 
victory  until  we  have  to-day  the  freest  govern- 
ment on  earth.  Zenger  is  one  of  the  un- 
crowned, unwept  and  unsung  heroes  of  our 
land.  There  is  nowhere  any  memorial  statue 
or  arch  to  him.  His  name  is  an  unfamiliar 
sound  to  the  people  who  enjoy  the  fruits  of 
his  strife  and  sufferings.  His  body  has  been 
mouldering  in  the  ground  for  over  a  hundred 
and  fifty  years  but  his  soul,  his  proud  free 
soul,  still  goes  marching  on. 

The  action  of  the  Virginia  Assembly  pre- 
sents quite  a  contrast  to  the  action  of  the 
^ew  York  Assembly  along  this  line.  A  few 
years  after  the  trial  of  Zenger,  William  Parks, 
the  government  printer  of  Y^irginia,  was  ar- 
raigned before  the  House  of  Assembly  on  the 
charge  of  publishing  in  the  Gazette  an  asser- 
tion that  a  certain  member  of  the  House  had. 
some  years  previously  been  convicted  of  sheep- 
stealing,  and  Mr.  Parks  was  allowed  by  the 
House,  in  spite  of  opposition  to  the  contrary, 
to  prove  by  the  records  of  the  court  the 
truth  of  the  charge  ;  and  was  upon  a  hearing 
acquitted.  The  member  who  was  charged 
with  sheep-stealing  thereafter  retired  in  dis- 
grace from  public  life. 


THE    LAW    OF    CONSTRUCTIVE    CONTEMPT.        Ill 

Mc  dougal's  case. 

Ill  1769,  a  liaiidbill  was  prepai'ed  and 
caused  to  be  j Minted  by  Alexander  Mc- 
Douii'al,  cliai'<^iii<2*  the  N^ew  York  Assem- 
l)ly  with  the  i)etrayal  of  its  trust  rehitive 
to  the  enforcement  of  the  Mutiny  Act,  for 
which  he  was  ari'ested  and  arraigned  be- 
fore the  assembly  which  held  the  document 
libelous  and  aMcDougal  was  imprisoned. 
His  condemnation  was  entered  on  page  fort}'- 
fi\'e  of  the  journal  of  the  assembly  and  that 
number,  thereupon,  became  the  countersign 
of  the  Sons  of  Liberty.  While  in  prison,  his 
callers  became  so  numerous  he  was  induced 
to  fix  and  did  fix  the  hours  for  his  daily  recep- 
tions at  from  3  to  6  P.  M.  The  Xew  York 
Journal.,  on  February  15,  1770,  published 
this  item  :  — 

Yesterday,  the  forty-fifth  day  of  the  year, 
forty-five  gentlemen,  real  enemies  to  internal 
taxation,  by  or  in  obedience  to  external  au- 
thority, and  cordial  friends  to  Captain  Mc- 
Dougal  and  the  glorious  cause  to  American 
liberty,  went  in  decent  procession  to  the  New 
Goal ;  and  dined  with  him  on  forty-five 
pounds  of  beef  steaks,  cut  from  a  bullock 
forty-five  months  old,  and  with  a  luimber  of 
other  friends  who  joined  them  in  the  after- 
noon, drank  a  variety  of  toasts,  exi)ressive 
not  only  of  the  most  undissembled  loyalty, 
but  the  warmest  attachment  to  liberty,  its 
renowned  advocates  in  England  and  America, 
and  the  freedom  of  the  Press. 

McDougal  shared  a  better  fate  than  Zen- 


112        Till-:    LAW    OF    CONSTRUCTIVE    CONTEMPT. 

gor,  for  bis  admirers  have  erected  a  statue 
to  his  meiiiuiy  in  New  York.  This  was 
probably  due  to  his  participatiou  iu  the  stir- 
ring events  just  preceding  the  Revolutionary 
struggle. 

.ckosswell's  case. 

New  York  furnishes  another  interesting 
case  on  the  subject  of  the  freedom  of  the 
press.  Harry  Crosswell  was  publisher  of  the 
Wasj),  a  Federalist  paper  of  New  York,  and 
on  the  ninth  day  of  September,  1802,  he 
published  this  item  :  — 

"  Jefferson  paid  Callender  for  calling  Wash- 
ington a  traitor,  a  robber,  and  a  perjurer;  for 
calling  Adams  a  lousy  headed  incendiary,  and 
for  grossly  slandering  the  private  characters 
of  men,  whom  he  knew  to  be  virtuous." 

Crosswell  was  indicted  under  the  laws  of 
New  York  for  criminal  libel  and  at  the  trial 
he  offered  to  prove  in  defense  of  the  charge 
that  one  James  T.  Callender  had  written  and 
published  a  pamphlet  dui'ing  the  presidential 
campaign  of  1800,  entitled  "  The  Prospect 
Befoie  Us,"  in  which  were  contained  the 
defamatory  epithets  applied  to  AVashington 
and  Adams,  and  that  Jefferson  had  paid  Cal- 
lender $50  before  the  publication  of  the  pam- 
phlet and  the  same  amount  afterwards  as  a 
reward,  "  thereby  showing  his  appreciation 
thei-eof ;  "  but  the  court  held,  following  the 
ruling  in  the  Zenger  case,  that  the  truth  of 
the  charge  against  Jefferson,  if  proved,  con- 
stituted no  defense,  and  Crosswell  was  con- 
victed.    A  motion  for  a  new  trial  was  argued 


Tin:  LAW  OF  CONSTUUCTIVE  CONTEMIT.    113 

hft'oiv  the  court  en  l)anc  in  1804,  one  of  the 
jiidi^-es  being  Chancellor  Kent.  Alexandei' 
Hamilton,  without  fee  or  reward,  ai)[)eared 
for  the  accused,  and  his  argument  was  along 
the  same  lines  of  his  namesake,  Andrew 
Hamilton,  in  the  Zenger  case  —  that  it  was 
not  a  lib(d  to  publish  the  truth.  The  court 
being  equally  divided,  the  motion  for  a  new 
trial  was  overruled ;  but  strange  to  say, 
Crosswell  was  never  called  up  for  sentence 
and  there  the  matter  ended,  which  shows 
that  even  the  judges  who  had  decided  that 
the  truth  of  the  charge  in  a  libel  proceeding 
could  not  be  given  in  evidence,  as  a  defense, 
faltered  when  they  came  to  the  enforcement 
of  a  verdict  obtained  by  the  application  of 
such  a  harsh  and  unjust  rule.  Hamilton,  a 
few  weeks  after  this  last  effort  of  his  in  de- 
fense of  the  freedom  of  the  press,  was  killed 
by  Aaron  Burr  in  a  duel.  It  is  pleasing  to 
note  that  the  great  law  commentator,  Kent, 
favored  the  doctrine  that  the  truth  of  the 
charge,  alleged  to  be  libelous,  could  be  given 
in  evidence  and  that  the  jury  should  be  the 
judge  of  the  law  as  well  as  the  fact,  which 
rule  now  generally  prevails  in  all  the  States. 

And  this  principle  as  well  as  the  principle 
that  the  jury  should  be  the  judge  of  the  law 
and  fact  in  a  libel  case  was  in  1805  put  into  a 
statute  of  New  York  and  there  it  is  yet. 

Thus  in  the  Crosswell  case  a  President  of 
the  United  States  and  the  old  political  enemy 
of  that  President  were  concerned.  Crosswell 
had  made  a  serious  charge  against  Jefferson 


114        THE    LAW    OF    CONSTRUCTIVE    CONTEMPT. 

and  Hamilton  pi'obably  rejoiced  in  the  oppor- 
tunity offered  him  of  trying,  at  least,  to  prove 
that  the  charge  was  true,  though  he  failed  in 
his  object ;  but  the  principle  he  contended 
for  is  fundamental  in  all  free  govei'uments, 
and  in  support  of  that  principle,  Jefferson 
was  as  earnest  as  Hamilton,  if  not  more  so. 


APPENDIX  B. 

THE  BATTLES    FOK  THE  FREEDOM  OF    THE  PRESS  IN 
PENNSYLVANIA. 

THE    MC  KEAN    CASE. 

In  1788  a  celebrated  case  arose  and  one  of 
the  principal  actors  in  it  was  Thomas  McKean, 
who  was  born  in  Pennsylvania  in  1734.  He 
was  a  deleo-ate  to  the  Colonial  Congress  of  New 
York  in  1765  and  was  the  only  nieml)ei-  of  the 
Continental  Congress  during  the  whole  time 
fi-om  1774  to  the  close  of  the  Revolutionary 
War  in  1783.  In  1781  he  was  president  of 
Congress.  In  1777  he  was  appointed  Chief 
Justice  of  Pennsylvania,  which  place  he  filled 
till  1799,  when  he  became  Governor  of  the 
State,  which  office  he  held  till  1808.  One  fea- 
ture of  his  career  will  be  of  special  interest 
to  the  present  generation  as  illustrative  of 
the  peculiarities  of  the  methods  of  those 
times.  He  was  a  citizen  of  Pennsylvania 
and  yet  in  all  the  proceedings  of  the  Con- 
gress and  ns  a  signer  of  the  Declaration  of 
Independence  he  is  credited  to  Delaware  and 
while  he  was  a  delegate  from  Delaware  in 
Congress  and  even  its  president  he  was 
Chief  Justice  of  his  native  State.  This 
can  be  accounted  foi-,  however,  by  the  fact 
that  until  the  adoption  of  the  Constitution 
of  1787,  Delaware,  though  in  a  sense  a  6ei)a- 
rate  province,  in  another  sense  w\as  a  part 
of  Pennsylvania.  ^McKean  was  a  patriot  but 
he  was  an  imperious  man,  and  in  his  judicial 
relations  was  oftentimes  considered  arbitrar}^ 

(115) 


11(3        THE    LAW    OF    CONSTRUCTIVE    CONTEMPT. 

lie  was  a  man  of  strong  will  and  pei'sonality 
and  nsnally  overcame  all  opposition,  however 
generated.  His  part  in  one  of  the  first  con- 
rticts  arising  out  of  a  trial  for  contempt  of 
court  in  the  State  of  Pennsylvania,  will  now 
be  given.  The  Eleazer  Oswald  mentioned  in 
the  ])roceeding  had  been  a  colonel  in  the  Rev- 
olutionary army  and  at  the  time  of  the  con- 
troversy was  publisher  of  the  Independent 
Gazette. 

On  July  12th,  1788,  Mr.  William  Lewis 
moved  for  a  rule  in  the  Supreme  Court  of 
Pennsylvania  on  him  to  show  cause  why  an 
attachment  should  not  issue  for  the  publica- 
tion of  a  libel  by  him  during  the  pendency 
of  a  suit  between  Brown  and  Oswald.  It 
appears  that  Oswald  inserted  in  his  news- 
paper, the  Independent  Oazette,  several 
anonymous  pieces  against  the  character  of 
Andrew  Brown,  a  master  of  a  female  acad- 
emy in  the  city  of  Philadelphia.  Brown  ap- 
plied to  him  to  give  him  the  names  of  the 
authors  of  these  articles  and,  being  refused, 
he  brought  an  action  for  libel  against  Oswald, 
returnable  into  the  Supreme  Court  on  the 
second  day  of  July  and  therein  demanded 
bail  for  $1,000.  Previously  to  the  return 
day  of  the  writ,  the  question  of  bail  being 
brought  by  citation  before  Mr.  Justice  Bryan, 
at  his  chambers,  the  judge,  on  a  full  hearing, 
discharged  defendant  and  plaintiff  appealed 
from  this  order  at  chambers  to  the  court. 
Afterwards,  on  July  1,  Oswald  ])ublished 
under  his  own  hand,  an  address  to  the  public, 


TIIK    LAW    OF    CONSTRUCTIVK    CONTEMI'T.         117 

in  which  he  took  occasion  to  insinuate,  as 
there  was  a  brother  of  the  plaintiff's  patron, 
Dr.  Rusii,  on  the  Bench,  he  might  not  receive 
a  candid  hearing  and  he  added  :  "  However, 
if  former  prejudices  should  l3e  found  to  oper- 
ate against  me  on  the  Bench,  it  is  with  a  jury 
of  my  country,  properly  elected  and  empan- 
nelled,  a  jury  of  free  men  and  independent 
citizens,  I  must  rest  the  suit.  *  *  *  The 
doctrine  of  libel,  being  a  doctrine  incompat- 
ible with  law  and  liberty,  at  once  destructive 
of  the  privileges  of  a  free  country  in  the 
communication  of  our  thoughts,  has  not 
hitherto  gained  any  footing  in  Pennsylvania  ; 
and  the  vile  measures,  formerly  taken  to  lay 
me  by  the  heels  on  this  subject,  only  brought 
down  obloquy  upon  the  conductors  them- 
selves. I  may  well  suppose  the  same  love  of 
liberty  still  pervades  my  fellow-citizens  and 
that  they  will  not  allow  the  freedom  of  the 
press  to  be  violated  upon  any  refined  pretense 
which  oppressive  ingenuity  or  courtly  study 
can  invent."  Here  we  find  an  exponent  of 
oneof  the  political  parties  of  the  times  brought 
face  to  facie  with  the  judiciary. 

Upon  this  state  of  facts,  after  henring  a  full 
discussion  by  William  Lewis  for  the  motion 
and  Jonathan  Dickenson  for  respondent. 
Chief  Justice  McKean  delivered  the  opinion 
of  the  court  and  held  that  Oswald  had  been 
guilty  of  a  contempt  of  court  in  the  pub- 
lication of  this  address. 

Oswald  was  called  up  and  McKean  said 
to    him  :   "  Having  yesterday    considered  the 


118       THE    LAW    OF    CONSTKUCTIVE    CONTEMPT. 

charge  against  you  we  are  unanimously  of 
the  opinion  that  it  amounted  to  a  contempt. 
Some  doubts  were  suggested  whether  even  a 
contempt  of  court  was  punishable  by  attach- 
ment; but  not  only  my  brethren  and  myself 
but  likewise  all  the  judges  of  England  think 
that  without  this  power  no  court  could  possi- 
bly exist.  Nay,  that  no  contempt  could  in- 
deed be  committed  against  us,  we  should  be 
so  truly  contemptible.  The  law  upon  the 
subject  is  of  immemorial  antiquity  and  there 
is  not  any  period  when  it  can  be  said  to  have 
ceased  or  discontinued.  On  this  point  there- 
fore we  entertain  no  doubt."  And  Oswald 
was  fined  ^610  and  imprisoned  one  month. 
He  thereupon  went  before  the  legislature  and 
attempted  to  have  articles  of  impeachment 
preferred  against  Chief  Justice  McKean  and 
his  associates  for  the  judgment  rendered  in 
this  case.  The  points  made  by  the  complaint 
were:  1.  That  the  Chief  Justice  had  pro- 
tracted his  imprisonment  beyond  the  legal  ex- 
piration of  his  sentence.  2.  That  his  impris- 
onment was  unconstitutional,  illegal  and 
tyrannical.  A  heated  debate  ensued.  The 
public  mind  was  much  inflamed.  The  mem- 
ories of  the  Revolutionary  struggle  were  still 
fresh  in  the  minds  of  the  people.  And  though 
the  Chief  Justice  had  interpreted  the  law  cor- 
rectly as  it  then  stood  beyond  cavil  and  had 
not  acted  through  prejudice,  for  he  had  held 
that  Oswald's  address  was  a  contempt  of 
court,  not  so  much  because  it  reflected  upon 
the    integrity   of   the  judges,    as    because    it 


TlIK    LAW    OF    CONSTRUCTIVE    CONTEMPT.  119 

sought  to  prejudice  the  pubhc  mind  against 
his  adversary  and  arouse  public  sympathy  in 
his  own  behalf,  there  were  twenty-three  out 
of  fifty-seven  votes  in  the  lower  house  for  his 
impeachment. 

It  may  be  added  that  Judge  McKean 
probably  entertained  extreme  views  on  the 
subject  of  libel.  In  1797  he  bound  over 
Cobbett,  publisher  of  the  Porcupine  Oazette 
at  Philadelphia,  to  the  grand  jury  for  an 
alleged  seditious  libel  against  the  King  of 
Spain  and  afterwards  instructed  the  grand 
jury  that  the  publications  were  libelous  be- 
cause they  were  calculated  to  defeat  the  recon- 
ciliation of  the  governments  of  Spain  and  the 
United  States.  The  question  involved  became 
a  party  issue,  the  Federalists  supporting  and 
the  Republicans  opposing  Cobbett,  and  the 
grand  jury  by  a  party  vote  refused  to  indict 
him, 

THE    SHIPPEN    CASE. 

This  attempt  of  Oswald's  to  have  the  judges 
im[)eached  failed, but  the  controversy  had  made 
its  impress  upon  the  popular  mind.  It  was 
McKean's  great  heart  and  stern  nature  and 
sterling  qualities  that  gave  him  the  victory- 
He  was  afterwards  thrice  elected  governor  of 
his  State,  and  during  his  administrations  many 
attempts  were  made  to  limit  the  authority  of 
the  courts  to  punish  for  contempts  by  the  sum- 
mary process  of  attachment,  by  legislative 
enactment,  but  the  governor's  intluence 
thwarted  every  such  attempt,  and  another  case 
arose,  involving  the  same  principle,  in  180i. 


120       THE    LAW    or    CONSTRUCTIVK    CONTEMPT. 

In  that  case  Edward  Shipjien,  who  succeeded 
Judge  McKean  in  1799  as  Cliief  Justice  of 
the  Supreme  Court  of  Pennsylvania,  was  con- 
cerned. Judge  Shippen  was  born  in  Phila- 
deljihia  in  1729,  and  was  eminent  in  the  coun- 
cils of  his  State.  In  1804:  he  was  still  Chief 
Justice,  and  was  then  seventy-three  years  old. 
The  case  here  referi-ed  to  was  that  of  Kespub- 
lica  V.  Passmore.  In  that  case  the  publica- 
tion complained  of  contained  no  reflection 
upon  the  court,  but  was  a  libelous  charge 
against  the  defendants  in  an  action  brought 
by  Passmore  in  the  Supreme  Court,  charging 
him  wnth  having  swH)rn  to  what  was  not  true 
in  an  affidavit.  The  court  proceeded  against 
him  summarily  by  attachment  for  contempt, 
and  fined  him  fifty  dollars  and  ordered  him  to 
be  imprisoned  thirty  days.  Mr.  Passmore 
complained  to  the  Legislature  against  Chief 
Justice  Shippen  and  Justices  Yeates  and 
Smith  for  this  proceeding  against  him,  which 
resulted  in  an  impeachment  i)referred  by  the 
House  of  Representatives  against  them  on 
the  23d  day  of  March,  1804.  They  were  tried 
before  the  Senate  in  January,  1805,  and  on  the 
26th  day  of  that  month,  were  acquitted  by  a 
vote  of  thirteen  senators  pronouncing  them 
guilty  and  eleven  not  guilty,  the  Constitution 
requiring  two-thirds  of  the  members  ])resent 
to  convict. 

Public  excitement  was  at  fever  heat,  and  in 
1809  the  Pennsylvania  Legislature,  under  the 
administration  of  Governor  Snyder,  enacted  a 
law  restricting  the  courts  in  the  punishment  of 


THE  LAW  OF  CONSTRUCTIVE  CONTEMPT.    121 

contempt  and  expressly  prohibited  this  process 
for  pnnishniLMit  for  "  jjuhlications  ont  of  court 
respecting  the  conduct  of  judges,  ofticers  of 
court,  jurors,  witnesses  or  parties,"  but 
authorized  a  proceeding  by  indictment  for  the 
same. 

This  is  the  history  of  the  remarkable  contest 
in  Pennsylvania  and  it  terminated  in  the  com- 
])lete  trium[)h  of  the  legislative  over  the  judi- 
cial branch  of  the  government  of  that  State. 
The  intensity  of  the  feeling  engendered,  in 
that  State,  by  these  trials  may  be  realized  by 
noting  that  twenty-three  out  of  fifty-seven 
rt'presentatives  in  the  lower  house  of  the 
assembly  in  1788  voted  to  impeach  the  Chief 
Justice  of  the  State,  a  signer  of  the  Declara- 
tion of  Independence  and  a  [)atriot  who  had 
stood  firmly  and  conscientiously  with  the 
fathers  of  the  Revolution  from  1765  to  the 
end  of  the  war  and  that  the  House  in  1804 
did  actually  impeach  Chief  Justice  Shippen 
and  his  associates  and  on  their  trial  before  the 
Senate  a  majority  (thii'teen  to  eleven)  voted 
for  their  conviction  and  they  escaped  only 
because  the  Constitution  recpiired  a  two-thirds 
vote  to  convict  them. 

To  fully  appreciate  the  lessons  of  these 
trials  we  must  carefully  note  the  exact  point 
in  controversy.  The  i)ai'ties  imprisoned  by 
the  coui't  foi-  contempt,  and  the  [)ublic,  as 
represented  by  the  General  Assembly  t)f 
Pennsylvania,  did  not  contend  that  the  right  to 
slander  or  libel  the  courts  oj'  the  parties  to  the 
litigation  in  the  courts,  existed,  but  they  all, 


122    THE  LAW  OF  CONSTRUCTIVE  CONTEMPI. 

with  one  accord,  objected  to  the  method  of 
determining  what  was  libelous  or  slanderous, 
the  people  insisting  on  the  right  of  trial  of 
such  a  question  by  a  jury  before  the  courts, 
while  the  other  party  claimed  and  exercised 
the  right  of  the  interested  court  to  try  the 
issue  without  a  jury. 


AITKNDIX  C. 
Tiiic   battlp:s  for  the  freedom  of  the  press  — 

THE  AMEN  AND  SEDITION   LAWS  OF  1798. 

Probably  no  event  in  our  liiKtoi-y,  except 
our  Civil  Wai",  has  had  a  profounder  influence 
on  the  course  of  administration  and  the  evo- 
lution of  American  institutions  than  the 
Alien  and  Sedition  Law^s  of  1798.  They 
were  a  controlling'  factor  in  the  Presidential 
election  of  1800,  and  they  were  the  occasion 
of  putting,  for  the  first  time,  in  concrete  form, 
the  doctrine  of  States'  Rights,  containing  the 
germ  of  secession  and  nullification,  which, 
sixty  odd  years  later,  eventuated  in  the  at- 
tempted secession  of  the  Southern  States,  in 
Civil  War  and  in  the  final  abolition  of  slavery. 
The  causes  which  impelled  Congress  to  enact 
these  laws  may  be  briefly  stated. 

After  the  commencement  of  the  French 
Revolution  in  1789,  the  sympathies  of  the 
American  j)eople  wei'e,  for  the  most  part,  with 
the  Revolutionists ;  and,  when  England  and 
France  became  engaged  in  war  in  1793,  a 
large  numbei'  of  our  people  insisted  we  owed 
it  to  the  latter  countiy,  for  the  assistance  she 
had  rendered  us  during  the  Revolutionary 
War,  to  espouse  her  cause  against  our  and 
her  common  foe.  Great  Britain.  Jefferson, 
who  had  been  in  Paris  for  some  years  prior  to 
and  at  the  breaking  out  of  the  Revolutionary 
movement  there,  and  who  was  in  comi)lete 
sympathy  with  the  Revolutionists,  was  at  the 
head  of  this  party.     Washington,  then  Presi- 

(123) 


124        THK    LAW    OF    CONSTRUCTIVE    CONTEMPT. 

dent  of  the  United  States,  on  the  contrary, 
was  oi)|)osed  to  espousing  the  cause  of  either 
combatant,  but  favored  impartial  neutrality 
between  them. 

Citizen  Genet  arrived  at  Philadelphia  in 
April,  1793,  as  the  Minister  of  the  French 
Republic,  and  at  once  sought  to  involve  this 
country  in  war  with  Great  Britain,  and  issued 
commissions  to  vessels  of  war  to  sail  from 
American  ports  to  cruise  against  the  enemies 
of  France ;  and  on  April  22,  1793,  the  Presi- 
dent issued  his  celebrated  proclamation  of 
neutrality  in  the  war  among  the  nations  of 
Europe.  Genet  pretended  to  feel  ver}^  much 
outraged  because  our  government  would  not 
espouse  the  cause  of  his  country,  and  threat- 
ened to  appeal  to  the  j)eople  of  the  United 
States  ;  whereupon  Washington  demanded  his 
recall  as  Minister,  which  demand  was  granted  ; 
but  Genet  remained  in  this  country.  It  was 
said  Genet  introduced  the  idea  of  Demo- 
cratic societies,  which  were  first  formed  in 
the  United  States  about  this  time,  in  imita- 
tion of  the  Jacobin  clubs  in  France.  At  the 
same  time,  the  friction  between  the  United 
States  and  Great  Britain  was  becoming  in- 
tense. On  our  part,  we  had  failed  to  induce 
the  States  to  restore  the  property  of  the 
Tories,  which  had  been  confiscated  during 
the  Revolutionary  AVar,  as  provided  by  the 
Treaty  of  Peace  of  1783;  and  England,  on 
her  part,  had  failed  to  carry  out  her  stipula- 
tions in  the  same  treaty,  in  regard  to  the  va- 
cation of  the  forts  on  the  Great  Lakes.     At 


THE  LAW  OF  CONSTRUCTIVE  CONTEMl'T,    125 

this  juncture  of  affairs,  Washingt(jii  appointed 
John  Jay  special  envo}'  to  EnjL^hmd,  who 
iief»'otiated  another  treaty.  The  Jay  Treaty, 
as  it  is  known  in  liistory,  was  submitted  to 
the  Senate  for  ratification  in  June,  1705,  and 
was  ratified  the  same  month.  This  treaty  was 
ver}'  unpopular  amon<;'  a  large  })ortion  of  the 
American  people,  chietly  because  it  provided 
for  the  payment,  by  the  national  government, 
of  all  debts  due,  by  individuals,  to  Bi'itish 
merchants  or  subjects,  which  were  ])revented 
from  being  collected  by  adverse  State  legis- 
lation, just  after  the  close  of  the  Kevolution- 
ar\'  War.  These  debts  were  mostly  due  to 
Bi'itish  subjects,  who  had  never  been  here,  or 
to  former  British  residents,  who  had  remained 
loyal  to  the  Biitish  government.  The  ratifi- 
cation of  this  treaty  caused  intense  excitement 
in  the  country,  the  extent  of  which  may  be 
realized  by  the  fact  that  John  Jay,  the  author 
of  the  treaty,  and  one  of  the  fathers  of  the 
Revolution,  and  the  first  Chief  Justice  of  the 
Supreme  Court  of  the  United  States,  was 
burned  in  efligy;  and  Hamilton,  a  strong 
advocate  of  the  ratification  of  the  treaty,  was 
pelted  with  stones  in  the  street,  by  which  he 
was  wounded  till  the  blood  trickled  down  his 
face.  Before  the  ratification  of  this  treaty 
the  feeling  of  hostility  against  England  was 
very  strong  ;  but  its  ratification  made  it  worse 
for  a  year  or  two.  The  decrees,  issued  by 
Great  Britain  and  France,  against  neutral 
vessels  trading  with  each  other,  had  the  effect 
to  interfere  with  our  commerce  on  the  seas ; 


120   THE  LAW  OF  CONSTRUCTIVE  CONTEMPT. 

and  these  not  only  intensified  tlie  feeling  of 
hostility  ci gainst  England,  but  aroused  a 
spirit  of  positive  opposition  against  Fi-ance 
for  the  first  time.  The  controversy  be- 
came a  partisan  one,  the  Republicans  favoi- 
ing  France,  and  Washington  and  the  Fed- 
eralists favoring  neutrality.  This  was  the 
status  of  affairs  when  Washington  retired 
from  the  Presidency  in  1797.  Genet  was 
still  in  this  country  as  an  agitator  in  French 
interests,  and,  about  the  same  time,  France 
sent  over  here  Yolney,  Cooper,  Preistly, 
Paine,  Rowan,  Tandy  and  others  to  convince 
us  our  Revolution  had  not  gone  far  enough; 
and  Great  Britain  sent  her  emissaries  to  con- 
vince us  it  had  gone  too  far.  The  emissaries 
of  France  went  from  village  to  village,  with 
a  view  of  creating  a  sentiment  among  the 
people  for  our  intervention  in  the  war  in  her 
favor.  Our  neutrality  embittered  her  against 
us,  and  her  decrees,  affecting  the  commerce  of 
the  world,  aroused  a  spirit  of  opposition 
against  her  among  us;  and  in  1797,  our  i"e- 
lations  with  her  were  becoming  very  much 
strained.  The  American  Minister,  Charles 
C.  Pinckney,  had  been  expelled  from  their 
territory  by  the  French  rulers,  who  also  issued 
new  orders  for  depredations  upon  American 
commerce.  Congress  passed  a  law,  in  June, 
1797,  to  prevent  xVmerican  citizens  from  fit- 
ting out  or  employing  ])rivateers  against 
nations  at  peace  with  the  United  States  ;  and 
the  President  was  authorized  to  call  out  the 
militia.       Notwithstanding     the     course     of 


THE    LAW    OF    CONSTRUCTIVE    CONTEMPT.         127 

France,  in  expelling-  our  Minister  fi'om  its 
territory,  and  its  depredations  upon  our  com- 
mei'ce,  the  President,  in  order  to  avoid  a  rup- 
tui'e  and  war,  appointed  Charles  C.  Pinckney, 
Elbridge  Gerry,  and  John  IMarshall  special 
envoys  to  the  Republic  of  Fiance,  with  ample 
l)0wer  to  negotiate  a  treaty  of  comnieice  and 
amity.  These  gentlemen  met  in  Paris  in 
October,  1797,  and  attempted  to  execute 
their  commission.  The  events  which  followed 
were  calculated  to  excite,  and  did  excite, 
the  indignation  of  the  American  people.  The 
French  government  refused  to  recognize,  offi- 
cially, our  envoys,  but  employed  individuals 
to  confer  with  them  in  their  private  capacit}'. 
The  correspondence,  on  the  part  of  those  rep- 
resenting France,  was  not  done  in  their  own 
names,  which  wei'e  then  unknown,  but  by  the 
letters  X  Y  Z ;  and  the  letters  passing  be- 
tween our  Ministeis  and  these  unknown  par- 
ties are  known  in  history  as  "  The  X  Y  Z 
Correspondece."  Our  Ministers  soon  dis- 
covered that  no  treaty  could  be  entered  into, 
which  would  be  honorable  to  the  United 
States  ;  and  the  French  government  oi-dered 
Pinckney  and  Marshall,  on  account  of  their 
staunch  Americanism,  to  leave  the  country, 
but  invited  Gerry  to  remain.  AVhen  the 
dispatches  from  oui'  envoys  were  made 
public,  they  excited  very  genei'al  indignation 
in  the  United  States,  particularly  when  it  was 
known  that  the  French  negotiators  had  de- 
manded money  as  the  price  of  peace  with  us. 
Our  people  responded  to  the  sentiment  of  Mr. 


128         THE    LAW    OF    CONSTRUCTIVE    CONTEMPT. 

Piiu;kiiey  on  that  occasion,  "  Millions  for 
defense,  but  not  a  cent  for  tribute."  Mr. 
Gerry  was  severely  censured  for  not  leaving 
France  with  his  colleagues,  and  he  was  finally 
ordered  home  by  the  President.  This  was 
the  situation  during  the  first  session  of  the 
Fifth  Congress  which  lasted  till  July,  1798. 
This  Congress  passed  laws  for  the  protection 
of  navigation,  for  maintaining  neutral it}^  for 
the  defense  of  the  sea-coast,  for  the  suspen- 
sion of  commercial  intercourse  between  the 
United  States  and  France,  and  for  raising  and 
equipping  an  army  for  defense ;  and  Wash- 
ington was  again  called  upon  to  command  our 
military  forces.  In  1798,  it  was  estimated 
that  there  were  thirty  thousand  French  citi- 
zens in  the  United  States,  clamoring  for  our 
intervention  in  favor  of  their  country  ;  and 
fifty  thousand  British  subjects,  some  of  whom 
had  been  Tories  during  the  Revolutionai-y 
War  ;  and  of  course,  the  presence  of  the  latter 
among  us  was  well  calculated  to  inflame  the 
public  mind  not  only  against  them,  but  also 
against  their  country,  especially  when  it  is 
remembered  that  they  were  here  for  the  pur- 
pose of  collecting  debts,  the  collection  of 
which  had  been  prohibited  by  State  legisla- 
tion, because  of  their  want  of  fealty  to  the 
Revolutionary  cause. 

These  were  the  conditions  in  Jul}^  1798, 
and  this  the  feeling  in  this  country  towards 
the  citizens  of  France  and  the  subjects  of 
Great  Britain  ;  and  these  were  the  chief  causes 
of  the  passage  of  the  Alien  Law,  but  there 


THE    LAW    OF    CONSTRUCTIVE    CONTEMPT.         129 

were  other  causes  for  an  embittered  feeling 
against  tlie  press,  and  partially  against 
aliens,  which  contributed  to  the  sentiment  in 
fa  vol-,  not  only  of  the  Alien  Law,  but  also  of 
the  Sedition  Law  ;  and  these  also  assumed  a 
partisan  hue. 

The  newspapers  became  the  oigans  of  the 
respective  parties,  and  during  the  period  from 
1783  to  1801,  it  seemed  to  be  accepted  as  a 
])olitical  axiom,  license  was  synonymous  with 
the  freedoni  of  the  press.  "  Xothing  in  the 
histoi-y  of  the  time  is  so  startling  as  its  (the 
press)  coarseness  and  cruelty,  its  venomous 
vigor  of  invective,  its  contemi)t  of  all  that 
should  be  sacred  in  political  warfare  and  |)ri- 
vate  life."  Street  brawls  with  fists  and  i)is- 
tols,  duels  and  murders  were  not  infrequent. 
Everybody  in  Philadelphia,  the  then  seat  of 
government,  went  armed.  Senators  and  rep- 
resentatives of  the  opposing  parties  took  pains 
to  avoid  each  other  on  the  streets,  f(ji'  fear 
they  might  have  to  tip  their  hats  to  their 
political  enemies;  and  it  is  said  Jefferson, 
who  was  Vice-president  from  1797  to  1801, 
often  took  a  roundabout  way  fi'om  the  Sen- 
ate chamber  to  his  rooms,  in  order  to  escape 
insult  from  his  political  foes.  Mr.  Alexander 
Dallas,  in  a  speech  in  Duane's  case,  tried  at 
Philadel[)hia  in  1800,  which  grew  out  of  the 
agitation  for  the  repeal  of  the  Alien  and  Sedi- 
tion Laws,  used  this  language  :  "  There  were 
two  periods  when  evei'y  one  wore  weapons  of 
defense  from  necessity.  The  first,  when  the 
police    were  so  defective  that  robberies  vvei'e 

9 


130    THE  LAW  OF  CONSTRUCTIVK  CONTKMPT. 

constant,  and  self-protection  became  necessary 
through  the  defects  of  the  law.  The  second, 
when  political  fury  rose  to  such  a  height,  as  in 
1785-6,  that  it  no  longer  became  a  question 
of  defense  against  robbers,  but  against  polit- 
ical opponents."  In  1797,  there  were,  prob- 
ably, in  the  United  States,  two  hundred  news- 
papers published.  Twenty  or  twenty-five  of 
these  op})osed  Adams's  administration,  with 
unexampled  bitterness  ;  and  they,  being  edited 
mostly  by  the  exiles  or  emissaries  of  foreign 
lands,  a  hostile  feeling  was  aroused,  not  only 
against  the  press,  but  also  against  the  aliens. 
The  most  prominent  among  these  exiles  or  aliens 
of  foreign  lands,  who  published  newspapers 
in  this  country, during  Adams's  administration, 
were  James  T.  Callender  of  Richmond,  Va., 
Benjamin  Franklin  Bache,  a  son-in-law  of 
Dr.  Benjamin  Franklin,  Thomas  Cooper, 
and  Matthew  Lyon.  In  1793,  Philip  Fre- 
neau,  a  Frenchman,  published  the  National 
Grazette  at  Philadelphia ;  and  though  he  was 
a  clerk  in  the  State  Department,  under  Mr. 
Jefferson,  he  attacked  Pi'esident  Washington 
and  his  policies  with  much  vehemence,  and 
even  malice.  President  Washington  retired 
from  office  on  the  fourth  of  March,  1797;  and 
on  the  next  day,  Bache,  in  his  paper,  The 
Aurora^  published  at  Philadelphia,  had  this 
to  say  about  that  event:  "The  man,  who  is 
the  source  of  all  the  misfortunes  of  our 
country,  is  this  day  i-educed  to  a  level  with  his 
fellow-citizens,  and  is  now  no  longer  pos- 
sessed of  the  power  to  multiply  evils  upon  the 


THE    LAW    OF    CONSTRUCTIVE    CONTEMPT.  131 

United  States,  If  ever  there  was  a  [)eriorl 
for  I'ejoicing,  this  is  the  moment.  All  hearts, 
in  unison  with  fi'eedom  and  the  hai)i>iness  of 
the  people,  ou^^ht  to  heat  high  in  exultation 
that  the  name  of  Washington,  on  this  day, 
ceased  to  give  currency  to  political  iniquity 
and  legalized  corruption."  This  publication 
so  incensed  some  of  the  veterans  of  the  Kevo- 
hition,  who  had  served  under  Washington, 
that  they  demolished  the  office  of  The  Aurora 
and  threw  its  types  and  presses  into  the 
stieets,  and  otherwise  expressed  their  indig- 
nation. The  agitation  at  once  commenced 
for  some  rei)ressive  measures  for  the  suppres- 
sion of  incendiary  and  seditious  publications 
against  the  President  and  those  high  in 
authority,  which  was  kept  up  till  the  summer 
of  1798.  There  being  a  majority  for  the 
administration  in  both  Houses,  Congress 
lashed  into  fury  by  "  the  X  Y  Z  Corres})ond- 
ence "  and  the  contemptuous  conduct  of 
France  towards  our  nation,  and  by  the  scur- 
rilous and  mnlicious  attacks  of  the  opposition 
papers,  on  Washington,  Adams  and  others, 
in  a  moment  of  weakness,  enacted  first  the 
Alien  Law,  June  25,  and  then  the  Sedition 
Law,  July  14,  1798. 

The  Alien  Law  invested  the  President  of 
the  United  States  with  the  power  of  ordering 
"all  such  aliens  as  he  should  judge  dangerous 
to  the  peace  and  safety  of  the  United  States, 
or  should  have  any  reasonable  gi-ounds  to 
suspect,  were  concerned  in  any  treasonable 
or  any  secret  machinations   against  the  gov- 


132    THE  LAW  OF  CON>TUUCTIVK  CONTEMPT. 

ernment  thereof,  to  depart  out  of  the  terri- 
tory of  the  United  States,  within  such  time 
as  should  be  expressed  in  such  order,"  and 
it  was  further  provided  that  if  such  order  was 
not  complied  with,  the  parties  should  be  judged 
guilty  of  an  offense,  be  imprisoned  for  a  term 
not  exceeding  three  years,  and  be  incapaci- 
tated for  subsequent  citizenship  ;  and  in  case 
war  should  be  declared,  the  President  was 
authorized  to  apprehend  and  lemove  the  sub- 
jects of  the  belligerent  powers.  This  act,  hy 
its  own  terms,  expired  June  25,  1800. 

The  Sedition  Act  provided,  "  That  if  any 
person  shall  write,  print,  utter,  publish  *  *  * 
any  false,  scandalous  and  malicious  writing 
or  writings  against  the  govei'nment  of  the 
United  States  or  either  House  of  Congress 
or  the  President,  with  the  intent  to  defame 
said  government,  or  either  House  of  Congress 
or  the  President;  to  bring  them  into  con- 
tempt or  disrepute;  to  excite  against  them, 
or  any  of  them,  the  hatred  of  the  good  people 
of  the  United  States ;  or  to  stir  up  sedition 
within  the  United  States ;  or  to  incite  any 
unlawful  combinations  therein  for  opposing 
or  resisting  a  law  of  the  United  States  or  any 
act  of  the  President  done  in  pursuance  of  any 
such  act,  or  of  the  powers  vested  by  the  Con- 
stitution ;  or  to  resist,  oppose  or  defeat  any 
such  law  or  act,"  upon  conviction  should 
be  fined  not  exceeding  two  thousand  dollars 
and  imprisoned  not  exceeding  two  years.  It 
was  provided,  however,  that  the  accused  might 
give    in    evidence    the  truth  of    the  charges 


TIIK    LAW    OF    CON8TRUCTIVK    CONTKMPT.         133 

against  him  and  that  the  jury  slioiiM  be  the 
iu'lii-es  of  tlu!  hnv  and  the  fact  under  the 
direction  of  the  coui-t.  This  pi'ovision  in  this 
othei'wise  odious  hisv  embodies  the  principle 
for  which  Zenger  and  Bradford  contended, 
and  marks  at  that  early  day  the  steady  prog- 
ress of  liberty. 

This  (ict^  hij  its  own  terms,  expired  on  the 
third  day  of  March,  1801. 

The  Alien  and  Sedition  Laws  were  re- 
sisted by  the  whole  power  of  the  Republican 
party,  before  as  well  as  after  their  passage, 
not  because  it  justified  the  slandering  or  libel- 
ing of  the  President  and  Congress  and  the 
government,  but  because  it  condemned  the 
interference  of  the  national  government  in 
regard  to  the  freedom  of  the  press  or  of 
religion.  That  party  held  that  the  States 
retained  the  riglit  to  determine  ^^  hoio  far  the 
licentiousness  of  sjjeech  or  the  press  may  he 
forbidden  loithout  lessening  their  useful  free- 
dom and  how  those  abuses  which  cannot  be 
separated  from  their  use  should  he  tolerated 
rather  than  destroy  the  use.""  Here  again 
we  see  the  contest  was  about  the  manner  of 
restraining  the  press  rather  than  its  unre- 
strained freedom. 

The  press  had  been  vituperative  ;ind  vin- 
dictive prior  to  the  passage  of  these  laws  but 
they  made  it  worse.  "The  aliens  became 
more  fractious  and  the  seditious  more  scurril- 
ous, and  the  result  was  the  government  found 
itself  impudently  bullied  by  those  it  attempted 
to   chastise.     It   was  reserved  for  later  times 


134   THE  LAW  OF  CONSTRUCTIVE  CONTEMPT.  • 

to  demonstrate  that  after  all,  a  press  the  most 
unfettered  is  a  press  the  most  restrained." 

Another  thing  that  made  these  laws 
obnoxious  was  they  were  substantial  copies 
of  English  statutes  on  the  same  subjects, 
passed  in  1794,  and  because  they  seemed  to 
follow  the  laws  of  England  and  the  European 
monarchies  in  removing  our  chief  officials 
from  the  I'cgion  of  criticism  ;  and  the  hatred 
of  England  was  utilized  by  the  Republicans 
to  intensify  the  feeling  of  hostility  against 
the  authors  of  these  laws. 

In  1798,  the  Virginia  legislatnre  passed 
resolutions  declaring  the  Alien  and  Sedition 
Laws  unconstitutioiud  and  that  the  States,  in 
case  Congress  by  its  legislation,  exceeded  its 
constitutional  powei's,  were  the  judges  as  well 
of  those  powers,  as  of  the  remedy  when  such 
powers  were  exceeded  ;  and  Kentucky,  in  the 
same  month,  adopted  a  set  of  resolutions, 
written  by  Mr.  Jefferson,  which  declared 
these  laws  unconstitutional  and  that  each 
State,  in  the  last  resort,  had  an  eqnal  right 
to  judge  for  itself  as  well  of  infractions  of  the 
Constitution  as  of  the  mode  and  measure  of 
redress. 

The  Virginia  and  Kentucky  resolutions 
were  sent  to  the  other  States  and  their  in- 
dorsement and  approval  asked.  Delaware 
passed  a  resolution  declaring  that  the  resolu- 
tions were  unfit  for  consideration  even. 
Rhode  Island  and  Massachusetts  answei-ed 
that  the}'  had  no  right,  as  States,  to  resist 
Federal  legislation,  but   the  final    arbiter,  as 


THE    T.AW    OF    CONSTIIUCTIVE    CONTEMPT,         135 

to  the  constitutionality  of  acts  of  Congress 
was  in  the  iSuprcnie  Court  of  the  United 
States.  Both  States,  however,  th  ught  the 
A  hen  and  Sedition  Laws  not  onl}'  constitu- 
tional, but  at  the  same  time  highly  necessary. 
Connecticut  refused  to  concur  in  the  resolu- 
tions l)ecause  it  considei-ed  the  acts  were 
constitutional  and  proper;  New  Hauipshire 
refused  to  give  an  opinion  because  it  claimed 
no  authoi'ity  to  do  so,  l)ut  it  intimated  the  acts 
were  constitutional;  Vermont  thought  the 
Supreme  Court  the  final  arbiter ;  New  York 
regarded  the  resolutions  as  inflammatory  and 
pernicious  and  refused  to  give  an  opinion  on 
the  constitutionality  of  these  laws  as  that 
prerogative  was  not  within  its  province.  The 
other  States  made  no  reply.  In  1799  the 
States  of  Virginia  and  Kentucky  considered 
the  answei's  to  thein-esolutions  and  reaffirmed 
their  original  resolutions  with  emphasis  and 
with  some  important  additions.  For  instance, 
Kentucky  asserted  the  doctrine  of  nullifica- 
tion, which  became  a  subject  of  i)olitical 
agitation  in  after  years.  These  resolutions, 
while  not  using  the  word  "  secession,"  con- 
tained the  principle  of  secession  as  they  were 
afterwards  construed  by  all  parties,  and  as 
stated  above,  the  Southern  States  attempted 
to  secede  in  1861  and  the  Civil  War  and  the 
abolition  of  slavery  followed  and  the  doctrine 
of  secession  was  eliminated  from  our  govern- 
ment forever  by  the  arbitrament  of  the  sword. 
There  is  but  little  question  that  Adams,  ex- 
cept for  the  Alien  and  Sedition  Laws,  would 


136        THE    LAW    OF    CONSTRUCTIVK    CONTEMPT. 

have  been  re-elected  President  in  1800  for  he 
had  the  support  of  one  hundred  and  eighty 
out    of    the    two    hundi'ed   newspapers    then 
published,  and  his  vigorous  measures  against 
the  domineering    insults  of    France  in   1798 
had  turned  the  tide  in  his  favoi",  and   it  had 
become  manifest  long  before  the  election  that 
France  was  not  going  to  establish  a  republic 
at  all  but  was  drifting  back  to  the  worst  of 
despotisms,  and  hence  there  would  have  been 
no  sympathy  for  her  in  N^ovember,  1800,  that 
could  have  operated  favorably  to    his  oppo- 
nent.    But  it    seems  the  fates  were  against 
Adams.     France,   seeing   that    we  were  de- 
termined to  defend  our    honor,  yielded  and 
there  was  no  war;  and  to  make  Adams'  folly, 
in  a  political  sense,  more  conspicuous,  there 
were  several  prosecutions  prior  to  and  during 
the  Presidential  campaign  of  1800  for  treason 
and  for  libel  against  the  President,  which,  not 
so  much  for  the  matter  as  the  manner  of  the 
prosecutions,  created  much  popular  indigna- 
tion and  gave  the  Republican  pai'ty,  headed  by 
Mr.  Jefferson,  an  oppoi'tunity  not  only  to  deny 
the  constitutionality  of  these  laws,   but   also 
to   appear  before  the  people  as    the  especial 
champion     of    the     freedom     of     the    press. 
Adams    was    defeated    and    the    Republican 
part}^  put  in  poAver,  which  it  retained  with  but 
slight     interruptions    for    sixty    years.     The 
course   of  administration  was    thus    changed 
and  it  w^ould  be  a  profitless  task  to  speculate 
as  to  "  what  might  have  been  "  had  the  change 
not   then   occurred.     It  is  enough   for  us  to 
know  what  has  been. 


APPENDIX  D. 

BATTLES    FOR    TUt:    FRKEDOM  OF    THE  PRESS  — THE 
ALIEN    AND  SEDITION  LAWS. 

MATTIiP:vV    LYON'S    CASE. 

The  fii'st  prosecution  under  tlie  libel  clause 
of  the  Seflition  Law  was  tliat  of  Matthew 
Lyon,  of  Rutland,  Yennont. 

Lyon  came  over  here  from  Tn-land  in  1755, 
poor  and  penniless,  and  as  the  custom  was 
then,  he  was  sold  for  a  time  to  pay  his  pas- 
sage money,  and  Mr.  Liversworth  of  Cam- 
bi'idg-e,  Massachusetts,  became  the  purchaser, 
the  i)urchase  price  being  "  a  pair  of  thi'ee-year- 
old  bull  stags."  Liversworth  took  him  to 
Vermont  where  he  served  out  liis  time.  He 
picked  up  some  education.  He  was  made  a 
corporal  in  the  army  under  Gates,  but  with- 
out leave,  went  home  for  Thanksgiving  one 
year,  for  which  he  was  cashiered,  but  was 
reinstated  next  year  and  made  paymaster  in 
the  army,  which  position  he  soon  gave  up  on 
account  of  a  srpiabble  with  another  officer. 
He  went  to  Fair  Haven  and  engaged  in  paper 
making,  printing,  etc.  —  was  given  permis- 
sion to  i-aise  six  hundred  bushels  of  wheat  by 
a  lottery  —  wheat  then  being  the  standard  of 
values.  He  published  "  The  Scourge  of 
Aristocracy  and  Repository  of  Important 
Political  Truth,"  on  paper  made  by  him- 
self—  married  Governor  Chittenden's  daugh- 
ter —  denounced  the  Society  of  the  Cincinnati 
in   his  paper,  and  was  elected  to  Congress  in 

(137) 


138   THE  LAW  OF  CONSTRUCTIVE  CONTEMPT. 

1796.  The  Porcupine  Gazette,  June  6, 1797, 
had  this  to  say  of  him  :  — 

"  The  Lyon  of  Vermont.  —  This  singuhir 
animal  is  said  to  have  been  caught  in  the  bogs 
of  llybernia,  and  when  a  whelp,  transported 
to  America;  curiosity  induced  a  New  Yorker 
to  buy  him,  and  moving  into  the  country 
afterwards,  exchanged  him  for  a  yoke  of 
young  bulls  with  a  Vermontese.  He  was 
petted  by  the  neighbors  of  Governor  Ciit- 
tenden  and  soon  became  so  domesticated  that 
a  daughter  of  his  Excellency  would  stroke 
and  play  with  him  as  a  monkey.  He  differs 
from  the  Afi-ican  Lyon,  is  more  clamorous 
and  less  magnanimous.  His  pelt  resembles 
more  the  wolf  or  the  tiger  and  his  gestures 
bear  a  remarkable  resemblance  to  the  bear. 
This  may,  however,  be  due  to  his  having 
been  in  the  habit  of  associating  with  that 
species  of  wild  beasts  on  the  mountains  ;  he 
is  carnivorous  but  not  very  ferocious — has 
never  been  detected  in  having  attacked  a  gen- 
tleman, but  report  says  he  will  beat  women. 
He  was  brought  to  this  city  (Philadelphia) 
in  a  wagon,  and  has  several  days  exposed 
himself  to  the  public.  It  has  been  motioned 
to  cage  him  as  he  has  discovered  so  much 
uneasiness  at  going  wnth  the  crowd.  Many 
gentlemen  who  have  seen  him  do  not  hesitate 
to  declare  that  they  think  him  a  most  extra- 
ordinai-y  beast." 

Before  the  log  fire  in  the  House  of  Repre- 
sentatives at  Philadelphia,  he  and  Roger 
Griswald  had  two  fights  over  his  having  been 


TlIK    LAW    OF    CONSTKUCTIVIC    CONTEMPT.  139 

cashiLTed  by  Gates,  wliieli  led  to  motions  in 
the  House  to  exi)el  l)Oth,  but  they  failed  as  to 
both. 

On  the  20th  day  of  June,  1798,  and  it  must 
here  be  remembered  that  this  was  Ijefore  the 
passage  of  tlie  Sedition  Law,  he  wrote  a 
letter  which  was  published  in  the  Vermont 
Journal  at  Windsoi',  Vt.,  on  the  23rd  day  of 
July,  1798,  this  being  after  the  passage  of  the 
Sedition  Law.  In  this  letter,  he  stated  :  "  As 
to  the  executive,  when  I  shall  see  the  efforts 
of  that  power  bent  on  the  promotion  of  the 
comfort,  the  happiness  and  the  accommodation 
of  the  people,  that  executive  shall  have  my 
zealous  and  uniform  support;  but  whenever 
I  shall,  on  the  part  of  the  executive,  see  every 
consideration  of  the  public  welfare  swallowed 
up  in  the  continual  grasp  for  power,  in  an 
unbounded  thirst  for  ridiculous  pomp,  fool- 
ish adulation  and  selfish  avarice ;  when  I 
shall  behold  men  of  real  merit  daily  turned 
out  of  office,  for  no  other  cause  but  mdepend- 
ency  of  sentiment ;  when  I  shall  see  men  of 
firmness,  merit,  years,  ability,  and  experience 
discarded  in  their  applications  for  office  for 
fear  they  possess  that  independence,  and 
men  of  meanness  preferred  for  the  ease  with 
which  they  take  up  and  advocate  opinions,  of 
the  consecpiences  of  which  they  know  but 
little  —  when  I  see  the  sacred  name  of  relig- 
ion employed  as  the  State  engine  to  make 
mankind  hate  and  [)ersecute  one  another,  I 
shall  not  be  their  humble  advocate." 

In  the  same  [)aper  was  published  a  letter 


140   THE  LAW  OF  CONSTRUCTIVE  CONTEMPT. 

wliich  pui-ported  to  have  been  written  by  a 
Fnjiich  diplomat.  Tliis  letter  is  known  as  the 
Barlow  letter  bnt  it  has  been  charged  that  it 
was  wi'itten  by  Lyon  himself.  The  letter  was 
snpposed  to  i-efiect  the  views  of  the  French  re- 
public in  regard  to  our  government.  It  stated  : 
"  The  misunderstanding  between  the  two 
governments  (France  and  the  United  States) 
has  become  extremely  alarming  ;  confidence  is 
completely  destro3^ed,  mistrusts,  jealousies, 
and  the  disposition  to  a  wrong  attribution  of 
motives,  are  so  apparent  as  to  require  the 
utmost  caution  in  every  word  and  action  that 
are  to  come  from  your  executive.  I  mean  if 
your  obj(!ct  is  to  avoid  hostilities.  Had  this 
truth  been  understood  with  you  before  the 
recall  of  Monroe,  before  the  coming  and  second 
coming  of  Pinckney ;  had  it  guided  the  pens 
that  wrote  the  bullying  speech  of  your  Presi- 
dent, and  the  stupid  answ^er  of  jouv  Senate, 
at  the  opening  of  Congress  in  IS^ovember  last, 
I  should  probably  have  no  occasion  to  address 
3^ou  this  letter.  But  when  we  found  him  bor- 
rowing the  language  of  Edmund  Burke,  and 
telling  the  world  that  although  he  should  suc- 
ceed in  treating  with  the  French,  there  was 
no  dependence  to  be  placed  in  any  of  their 
engagements,  that  their  religion  and  their 
morality  were  at  an  end,  that  they  would  tuiMi 
pirates  and  plunderei's  and  it  would  be  neces- 
sary to  be  perpetually  armed  against  them, 
though  you  were  at  peace  ;  we  wondered  that 
the  answer  of  both  Houses  had  not  been  an 
order  to  send  him  to  the    madhouse.     Instead 


THK  LAW  OF  CONSTKUCTIVK  CONTEMIT.    141 

t)t'  this,  tlie  Senate  has  cclioed  tiu-  Hpecch 
with  more  .sei  vility  tliaii  even  George  III  ex- 
j)erienced  from  either  House  of  Parliament." 
Lyon  was  indicted,  OctoI)ei'  5,  1798,  for  pub- 
lisliiiio-  these  two  letters,  it  being  charged 
that  he  published  them  "  with  the  intent  to  stir 
up  sedition  and  l)ring  the  President  and  C(jn- 
gress  of  the  United  States  into  contempt." 
He  was  tried  before  Judge  Paterson,  an  As- 
sociate Justice  of  theSnpi'eme  Coui't,  and  (jue 
cu'cumstance  took  place  wliich  deserves  special 
mention.  He  acted  as  his  own  attorney 
and  during  the  trial,  in  order  to  pi'ove  the 
truth  of  the  charge  in  the  letters,  he  asked 
the  presiding  judge  if  he  knew  Mr.  Adams 
and  if  he  did  not  think  ]\[r.  Adams  was  an 
aristocrat.  The  judge,  while  on  the  bench, 
stated  that  he  had  been  tolei'ably  intimate 
with  the  President  and  that  he  had  never  seen 
anytlung  in  his  conduct  that  indicated  that 
he  was  an  aristocrat.  Lyon  was  convicted 
and  his  punishment  fixed  at  a  fine  of  one 
thousand  dollars  and  imprisonment  in  jail 
four  months.  He  paid  his  fine  and  served  out 
his  time  in  jail.  While  in  jail  he  was  re-elected 
to  Congress.  It  was  said  that  his  imprison- 
ment was  enforced  by  a  rigor  that  excited  the 
indignation  of  the  peoi)le,  but  he  would  not 
try  to  escape.  In  fact  his  enemies  chaiged 
that  he  desired  to  make  a  martyi'  of  himself  on 
account  of  this  prosecution  and  imprisonment. 
His  wife  visited  him  while  in  jail  and  she  in- 
sisted he  should  neither  escape  nor  accept  a 
pardon    from  the  President,  if   it    should    be 


142        TIIK    LAW    OF    CONSTRUCTIVE    CONTEMPT. 

tendered  him.  After  serving  his  time  out,  he 
went  to  Philadelphia  and  took  his  seat  in  the 
House.  A  motion  was  made  to  expel  him  but 
it  failed  because  there  were  not  two-thirds  in 
favor  of  his  expulsion,  the  vote  standing 
forty-eight  against  him  and  forty-five  for  him. 
He  declined  an  election  in  1800,  and  in  1801 
he  moved  to  Kentucky.  In  1803,  he  was  sent 
to  Congress  from  Kentucky  and  found  him- 
self a  hero,  the  majority  in  the  House  being- 
then  in  his  favor.  He  served  as  a  member 
from  Kentucky  until  1811,  when  he  was  ap- 
pointed factor  for  the  Cherokee  Indians  by 
thePi'esident,  and  he  moved  west  of  the  Mis- 
sissippi river.  It  seems  he  was  a  man  of 
great  physical  endurance,  for  he  made  a  trip 
from  Arkansas  to  Kentucky  and  Washington 
on  horseback,  and  in  the  last  years  of  his  life, 
he  took  a  raft  to  ISTew  Orleans,  in  doing  which 
he  suffered  a  great  deal.  He  died  at  Spadre 
Bluff,  Ark.,  August  1,  1822,  at  the  age  of 
seventy-seven.  In  1810,  Congress  refunded 
the  fine  which  had  been  imposed  upon  him 
in  1798,  with  interest,  to  his  relative^,  at  the 
same  time  condemning-  the  law  under  which 
he  had  been  convicted. 

The  case  of  Lyon  has  some  resemblance,  in 
many  of  its  aspects,  to  that  of  John  Wilkes 
in  England  in  1769.  AVilkes  was  convicted 
in  the  King's  Bench,  on  the  third  day  of 
February,  1769,  "  for  having  printed  and  pub- 
lished a  seditious  libel  and  three  obscene  and 
impius  libels,"  and  was  fined  and  imprisoned. 
He,  being  a  member  of    the  House  of  Com- 


THE    LAW    OF    CONSTRUCTIVE    CONTE.MI'T.         14/i 

moiis,  wasoxpc^lled  liccause  of  tliis  conviction, 
but  the  fVcchohlcrs  of  Middlesex  re-elected 
him  and  he  was  ag"ain  expelled.  The  frec- 
hohh'rs  a<4ain  elected  him  and  he  was  a<4ain 
ex|)elled.  These  elections  were  without  op- 
position. On  the  13th  of  Ai)iil,  1769,  a  new- 
election  was  ordered  and  ^Ir.  Luttci-el  had 
the  backbone  to  become  an  oi)})onent  of  Mr. 
Wilkes,  but  AVilkes  received  1,143  votes  and 
Lutterel  296.  The  sheriff  returned  ^Fr. 
Wilkes,  but  the  House  detei'mined  that  ^fr. 
Lutterel  was  duly  elected  on  the  ground  that 
Wilkes  was  not  elig'ible.  There  was  an  at- 
tempt to  expel  Lyon  from  the  House,  but  it 
failed.  The  Federalists,  howevei-  all  voted 
for  his  expulsion  and  thus  increased  the  sus- 
picion, that  they  favored  the  P^nglish  policies 
and  were  disposed  to  follow  English  prece- 
dents. Otherwise  the  Lyon  case  did  not 
have  much  political  influence,  as  his  trial  be- 
fore Judge  Paterson  was  conducted  with 
great  calmness  and  decorum,  and  there  was 
no  indignation  aroused  on  account  of  the 
methods  adopted  in  his  prosecution. 


APPENDIX    E. 

THE    BATTLES    FOR   THE  FREEDOM  OF  THE    PRESS  — 
THE  ALIEN  AND  SEDITION  LAWS. 

Anthony  Haswell's  Case. —  Another 
prosecution  under  the  Sedition  Law  may  be 
cited  as  an  echo  of  the  Lyon  case,  and  tliat  is 
the  one  against  Anthony  Ilaswell.  Mr.  Ilas- 
well  was  born  in  Portsmouth,  Eng.,  in  1756. 
He  was  at  an  early  age  connected  with  the 
English  navy  but,  disliking  a  seafaring  life, 
he  found  his  way  to  this  country,  coming 
first  to  Philadelphia  where  a  sister  of  his 
lived.  He  engaged  in  the  Continental  service 
in  defense  of  American  liberty  during  the 
Revolutionary  AYar  and  periled  his  life  at  the 
battle  of  Monmouth.  After  the  war,  he 
located  at  Bennington  in  what  is  now  Ver- 
mont, and  in  1783,  he,  with  one  or  two  other 
parties,  established  the  Vermont  Gazette  \sh.\Q\\ 
he  and  his  descendents  continued  to  publish 
up  to  1850.  His  papei-  took  an  active  part  in 
the  controversy  between  ISTew  York  and  Xew 
Hampshire,  respecting  the  right  of  jurisdic- 
tion over  the  territory  included  in  what  was 
known  as  the  "  N^ew  Hampshire  Grants." 
By  the  time  the  Federal  Constitution  was 
adopted,  this  controversy  had  been  closed  and 
the  State  of  Vermont  was  admitted  to  the 
Union,  March  4,  1791.  Previous  to  the  ad- 
mission of  the  State,  post  offices  had  been 
established  at  various  places  in  it,  and  ]Mr. 
Haswell  was  appointed  Postmaster  General 
for  the  "  Grants."  Diu'ing  Washington's 
(144) 


TIIK    LAW    OF    CONSTUUCTIVE    CONTEMIT.        145 

administrations,  tliere  existed  comparatively 
little  diversity  of  political  opinion  in  Veiinont 
but  when  the  Presidential  election  of  1796 
approached,  the  peoi)le  there  marshaled  them- 
selves into  opposing  political  camps,  which 
then  divided  the  country.  Mr.  Haswell  at- 
tached himself  to  the  Kepuhlican  or  Demo- 
cratic party  and  hecame  its  staunch  supporter. 
He  was  indicted  in  1799  for  the  publication  in 
his  paper  of  the  following  notice  :  — 

"  To  the  Enemies  of  Political  Persecution 
in  the  Western  District  of  Vermont.  — Your 
representative  (Matthew  Lyon)  is  holden  by 
the  oppressive  hand  of  usurped  power  in  a 
loathsome  prison,  deprived  almost  of  the  right 
of  reason,  suffeiing  all  the  indignities  which 
can  be  heaped  upon  him  by  a  hard-hearted 
savage  who  has,  to  the  disgrace  of  Federal- 
ism, been  elevated  to  a  station  where  he  can 
satiate  his  barbarity  on  the  misery  of  his  vic- 
tims. But  in  spite  of  Fitch  (the  marshal)  and 
to  their  sorrow,  time  will  pass  away;  the 
month  of  February  will  arrive  and  will  it 
bi-iiig  liberty  to  the  defender  of  your  rights? 
No.  Without  exertion,  it  will  not.  Eleven 
hundred  dollai's  must  be  paid  for  his  ransom. 
This  money  it  is  impossible  for  Col.  Lyon  to 
raise  in  any  ordinary  way.  A  contribution  is 
talked  of,  but  this  is  an  uncertain,  huiuiliating 
and  precarious  method.  Col.  Lyon  has 
adopted  a  plan  which  accords  with  his  feel- 
ings, and  he  hopes  it  may  be  w^ith  those  of  his 
friends.  The  plan  is  this:  lie  has  purchased 
a  grant  for  a  lottery,  u[)on  which  he  has  formed 

10 


14  G       THE    LAW    OF    CONSTRUCTIVE    CONTEMPT. 

a  scheme  whei'eby  be  rlesigns  to  sell  tickets 
for  money  to  the  amount  of  his  fine  and  con- 
sequent losses;  and  pay  the  prizes  in  land, 
houses,  and  such  other  property  as  he  has  to 
dispose  of.  May  we  not  hope  that  this  amount 
may  answer  the  desired  purpose,  and  that  our 
representative  shall  not  languish  a  day  in 
prison  for  want  of  money  after  the  measure 
of  Federal  injustice  is  filled  upV  " 

This  article  was  published  by  the  agents 
of  the  lottery  scheme.  Haswell  also  inserted 
in  his  paper,  right  under  the  above  notice,  an 
item  taken  from  the  Aurora,  as  follows  :  "  At 
the  same  time  the  administration  publicly  no- 
tified that  Tories,  men  who  had  fought 
against  oui'  independence,  who  had  shai'ed  in 
the  desolation  of  our  homes  and  the  abuse  of 
our  wives  and  daughters,  were  men  who  were 
worth}^  of  the  confidence  of  our  government." 
He  was  tried  before  Judge  Paterson  at  Wind- 
sor, Vt.,  May  5,  1800  —  was  convicted,  and 
his  punishment  fixed  at  a  fine  of  two  hundred 
dollars  and  imprisonment  in  jail  two  months. 
The  following  is  an  account  of  Mr.  Has- 
well's  treatment  pi'ior  to  and  after  his  convic- 
tion : — 

"  He  was  arrested  at  night  and  notified  to 
])repare  for  a  journey  to  Rutland  earl}'  in  the 
morning.  Accordingly,  at  a  very  eai'ly  hour, 
Mr.  Haswell,  although  in  very  poor  health, 
and  totally  unaccustomed  to  riding,  was  com- 
pelled to  mount  a  horse  and  ride  sixty 
miles  through  the  rain  on  a  cold  day  in  Octo- 
ber, to  the  jail  at  Rutland.  Hei'e  he  was 
thrown  into  a  filthy  prison  at  midnight,  not- 


THE    LAW    OF    CONSTRUCTIVE    CONTEMPT.         147 

witlist;ni«liiig-  his  ontreatieB  to  be  permitted 
to  di-y  his  clothes,  which  were  saturated 
with  the  rain,  and  to  repose  liimself  in  decent 
quai'ters  after  the  fatigue  of  the  joui'ney. 
S(!veral  of  th(;  most  responsible  men  in  Rut- 
land offei'ed  any  security  the  mai'shal  mi^^ht 
demand  to  induce  him  to  grant  these  requests, 
but  in  vain.  The  prisoner  was  thrown  into 
the  prison  and  never  afterwards  recovered  en- 
tirely from  the  shock,  thus  given  to  his 
health.  From  Rutland,  he  was  taken,  next 
morning,  to  Windsor,  where  he  was  to  be 
tried.  His  sentence  was  rigidl}^  carried  out, 
and  he  was  remanded  to  the  jail  at  Benning- 
ton to  fulfill  his  imprisonment.  At  the  expi- 
ration of  his  sentence  an  immense  concourse 
of  people  fi-om  the  neighboring  county  assem- 
bled to  welcome  him  back  to  liberty  and  to 
signahze  their  disapprobation  of  his  impris- 
onment. He  marched  forth  fi'om  his  quar- 
ters at  the  jail  to  the  tune  of  Yankee  Doodle, 
played  by  a  band,  while  the  discharge  of  can- 
non signified  the  general  satisfaction  at  his 
release." 

This  account  of  Ilaswell's  ti-eatment  is 
probably  very  much  exaggerated,  but  it  was 
])ublished  far  and  wide  and  had  the  desired 
effect  to  inflame  the  public  mind  against  the 
administration  during  the  Presidential  cam- 
paign. Xothing  particularly  noteworthy  took 
place  at  the  trial.  Haswell  offered  pi'oof  to 
the  jury  as  to  the  inhuman  treatment  of  Lyon, 
by  the  jailer,  as  a  justification  of  the  charge  in 
the  indictment,  but  the  jury,  under  the  charge 
of  the  court,  found  against  him  on  that  point. 


148       THE    LAW    OF    COXSTKUCTIVE    CONTE.MrT. 

Mr.  Hyswell  died  Mny  22, 1816,  at  the  age 
of  sixty  years.  In  1844,  Congress  passed  a 
law,  refunding  to  his  representatives  the 
amount  of  the  fine  imposed  on  him  in  this 
case,  with  interest  for  forty  years. 

In  extenuation  of  the  conduct  of  Lyon  in 
operating  a  lottery  to  raise  money  to  pay  his 
fine  and  the  costs  of  the  prosecution  and  of 
the  indorsement  of  that  method  by  his  friends, 
it  may  he  stated  that  at  that  time,  many,  prob- 
ably all  of  the  States,  authorized  lotteries  to 
raise  money  for  public  and  private  purposes. 
That  was  a  favorite  means  of  raising  money 
to  found  schools  and  asylums,  to  build  bi'idges, 
to  make  roads,  etc.,  and  England  raised  a 
large  part  of  her  annual  revenue  by  govern- 
ment lottei'y.  The  immorality  and  vicious- 
ness  of  lotteries  were  not  fully  recognized  in 
this  country  and  Great  Britain  till  about 
1820-30.  Even  as  late  as  1826,  at  Jeffer- 
son's own  I'equest,  Congress  authorized  him 
to  dispose  of  his  property  by  a  lottery  in 
order  to  enable  him  to  pay  his  debts.  Wash- 
inton  City,  under  laws  of  Congress  at  that 
time,  operated  a  lottery  to  raise  money  for 
municipal  pur[)Oses,  and  on  February  22,1827, 
authorized  that  city  to  include  in  its  lottery 
scheme  the  lands  of  Mr.  Jefferson.  So  it 
ought  not  to  surprise  anyone  that  in  1799  a 
notice  was  published  stating  that  a  Congress- 
man had  obtained  the  gi'ant  of  a  lottery  to 
raise  money  to  pay  his  ransom,  as  he  called  it, 
and  which  plan,  it  was  stated,  accoi'ded  with 
his  feelings  and  he  hoped  that  it  might 
accoi'd  with  those  of  his  friends. 


APPENDIX  F. 

THE   BATTLES    FOlt  THE    FREEDOM    (»F    THE    PHESS  — 
THE  ALIEN  AND    SEDITION   LAWS. 

Coopf:ii's  Cask.  —  Another  ease  arising 
undei-  the  Sedition  Law  was  that  of  Thomas 
Cooj^er,  and  as  this  case  j^rew  out  of  one  of 
the  m(>st  bitter  conti'oversies  of  the  time  and 
had  much  inflnence  on  the  com'se  of  political 
opinion  in  the  campaign  of  1800,  it  will  be 
ap[)ropriate  to  <>'ive  a  bi'ief  statement  showing 
the  circumstances  out  of  which  it  grew.  One 
Thomas  Nash,  alias  Jonathon  Kobbins,  was 
arrested  at  Charleston,  S.  C,  on  a  wari'ant 
issued  by  Judge  Bee,  on  sus[)icion  of  having 
been  concerned  in  a  mutiny  on  board  the 
Bi'itish  frigate  Ilermione  in  1791,  which  ended 
in  the  murdei'  of  the  principal  officers  and  the 
carrying  of  the  frigate  into  the  Spanish  port, 
La  Guyra,  in  Venezuela,  by  the  mutineers, 
where  they  sold  the  frigate  and  its  cai'go  to 
Spanish  subjects.  Nash,  alias  Kobbins,  es- 
caped to  the  United  States  and  the  Bi'itish 
government  demanded  his  surrender  under 
the  twenty-seventh  article  of  the  treaty  be- 
tween the  United  States  and  herself.  Affi- 
davits were  made,  charging  Xash,  alias  Rob- 
bins,  with  being  a  |)articipator  in  the  mutiny 
and  the  sale  of  the  shi|)  and  its  cargo.  He 
filed  an  affidavit  in  his  own  behalf,  stating  that 
he  was  born  in  Danbury,  (Connecticut;  that 
he  was  pressed  into  the  British  service  off  of  the 
brig  Betsy  of  New  York,  commanded  by  Cap- 
tain White  and  bound  for  St.  Nicholas  Mole, 

(149) 


150       THE    LAW    OF    CONSTRUCTIVE    CONTEMPT. 

by  the  British  frigate  Ilermione,  commanded 
by  Captain  Wilkinson,  and  was  there  detained 
conti'ary  to  his  will  in  the  service  of  the  Brit- 
ish nation,  until  the  said  vessel  was  captured 
by  her  crew,  and  that  he  gave  no  assistance 
to  such  capture.  The  question  whether  he 
ought  to  be  extradited,  under  the  cii'cum- 
stances,  came  before  Judge  Bee,  in  June, 
1799,  on  wi'it  of  habeas  corpus,  and  while 
that  question  was  pending  before  him,  the 
Secretary  of  State  addressed  a  letter  to  the 
judge,  informing  him  that  the  application  had 
been  made  by  the  British  minister,  Liston,  for 
the  extradition  of  the  prisoner  under  the 
treaty,  and  stating  that  the  President  had 
authorized  him  (the  Secretary  of  State)  to 
communicate  to  the  judge  "  his  advice  and 
request,"  that  Thomas  Nash  ( Jonathon  Kob- 
bins)  be  delivered  to  the  consul  or  other  agent 
of  Great  Britain.  On  the  first  day  of  July, 
1797,  upon  a  hearing  of  the  habeas  corpus, 
the  judge  decided  that  he  ought  to  be  delivered 
up  to  the  British  authorities,  which  was  accord- 
ingly done,  and  he  was  taken  to  Jamaica, 
tried  for  the  crime  of  murder,  and  executed. 
The  Kepublican  press  attacked  the  adminis- 
tration with  great  fury  for  extraditing  Kob- 
bins  on  two  grounds,  first,  that  a  murder 
committed  on  the  high  seas  was  triable  here, 
though  committed  on  a  foreign  vessel ;  and, 
second,  the  interference  of  Adams  with  the 
pi'oceedings  in  court. 

Mr.  Cooper  was  born   in   London   in   1759 
and  was  educated  at  Oxford.     He  studied  law 


THE  LAW  OF  CONSTULCTI VK  CONTEMl'T.   151 

aiul  was  adinitU'd  to  tlic  hiw.  lie  also  took  u 
coui-se  ill  the  sciences  and  became  a  great 
chemist.  Soon  after  his  advent  to  the  bar  in 
1792,  lie  accepted  an  ambassadorship  from 
the  Democratic  club  in  England  to  a  club  in 
Fi'ance,  Mr.  Watt  of  steam  engine  fame  sign- 
ing his  credentials.  For  this,  Watt  and 
Cooper  were  both  assailed  in  the  House  of 
Commons  by  Mr.  Burke.  Mr.  Cooper  re- 
turned to  England  in  the  course  of  a  year  or 
two  and  he  replied  to  Burke's  strictures  in  a 
pami)hlet,  "  which  made  u[)  for  the  want  of 
vivacity  of  its  style  by  the  excessive  inflamma- 
tion of  its  temper."  lie  finally,  in  company 
with  Di'.  Priestley,  came  to  this  country.  He 
seemed  to  be  impressed  with  the  idea,  on 
Landing  on  our  shores,  that  the  government 
would  soon  demand  his  services  and  he  ap- 
plied to  President  Adams  for  a  position, 
which  was  not  given  him,  whereupon  he  be- 
came violently  opposed  to  the  Federal  party. 
In  December,  1799,  he  being  then  the  editor 
of  the  Sunbury  and  Northumberland  Gazette, 
published  an  ai'ticle  in  which  he  undertook  to 
explain  why  he  had  asked  ^Ii'.  Adams  for  an 
office,  which  article  is  as  follows : — 

"  Xor  did  I  see  any  impropriety  in  making 
this  request  of  Mr.  Adams.  At  that  time, 
he  had  just  entered  into  office;  he  was  hardly 
in  '^  "  *  the  infancy  of  political  mis- 
take. Even  those  who  doubted  his  capacity 
thought  well  of  his  intentions.  Xor  were 
we  yet  saddled  with  the  expense  of  a  *  "  * 
permanent     navy     nor    threatened   under   his 


152       THE    LAW    OF    CONSTRUCTIVE    CONTEMPT. 

anspicos  with  the  existence  of  a  standing 
army  Onr  credit  wns  not  yet  reduced  so 
low  as  to  borrow  money  at  eight  per  cent 
in  time  of  ])eace,  while  the  unnecessary 
violence  of  official  expressions  might  justly 
have  provoked  a  war.  Mr.  Adams  had  not 
yet  projected  his  embassies  to  Prussia, 
Russia,  and  the  Sublime  Poi'te,  nor  had 
he  yet  interfered  as  President  of  the  United 
States  to  influence  the  decisions  of  the 
court  of  justice  —  a  stretch  of  authority 
which  the  monarch  of  Great  Britain  would 
have  shrunk  from  —  an  interference  without 
precedent,  against  law^  and  against  mercy. 
This  melancholy  case  of  Jonathon  Robbins, 
a  native  citizen  of  America,  forcibly  impressed 
by  the  British  and  delivered  up  with  the  advice 
of  Ml".  Adams  to  the  mock  trial  of  the  British 
court-martial,  had  not  yet  astonished  the 
Republican  citizens  of  a  free  country  ;  a  case 
too  little  known  but  of  which  the  people  ought 
to  be  fully  apprised,  and  they  shall  be." 

For  publishing  this  article,  Mr.  Cooper  was 
arrested  at  Philadelphia  iu  April,  1800,  on  an 
information  filed  by  the  District  Attorney 
before  Mr.  Justice  Samuel  Chase  and  Mr. 
Justice  Peters.  He  was  tried  and  convicted 
and  his  punishment  fixed  at  a  fine  of  four 
hundred  dollars  and  imprisonment  in  jail  six 
months.  He  paid  the  fine  and  served  out  his 
time  in  jail.  Judge  Chase,  in  his  charge  to 
the  jury  in  this  case,  dwelt  at  considerable 
length  on  each  item  of  the  publication  which 
was  the  basis  of  the  charge  and  insisted  that 


THK  LAW  OF  CON8TRUCTIVK  CONTEMPT.   153 

the  object  of  Mr.  Cooper  was  to  bring  the 
President  into  contempt  l)etV)i'e  tbe  people  of 
the  United  States.  In  ordci-  to  show  tiie 
gi'eat  contrast  between  the  views  entei'tained 
a  hundred  yeai's  age  and  now,  in  regai'd  to 
the  criticism  of  tlie  President,  a  part  of  the 
charge  of  Judge  Chase  to  the  jui'v  is  givi-n. 
"In  this  alhision,"  says  the  Judge,  "to 
Jonathon  Pobbins,  he  expressly  tells  you  this 
is  'a  case  too  little  known,  but  of  which  the 
people  ought  to  Ik;  fully  aj)prised  before  the 
election,  and  they  shall  be.'  Here  then  the 
evident  design  of  the  travei'ser  (Coo))er)  was  to 
arouse  the  people  against  the  Pi'esident  so  as 
to  inflame  their  minds  against  him  at  the  next 
election.  I  think  it  right  to  explain  this  to 
you  because  it  proves  tliat  the  ti'averser  v^as 
actuated  by  improper  motives  to  make  this 
charge  against  the  Piesident."  But  the 
judge  was  liberal  enough  in  the  trial  of  this 
case  to  allow  Mr.  Cooper  to  read  public  docu- 
ments to  the  jury  to  pi'ove  the  truth  of  the 
charge,  but  eludge  Chase  was  too  much  bent 
on  conviction  to  allow  him  to  escape. 

This  case  illustrates  the  folly  of  the  gov- 
ernment's attempt  to  suppress  adverse  criti- 
cism, though  it  be  unjust  and  even  malicious. 
The  President  had  been  ci'iticiscd  for  the 
extradition  of  Robbins  prior  to  this  trial  but 
this  made  it  woi'se.  The  Kobbins  case  was 
made  a  political  issue  and  in  the  winter  of 
1800,  it  was  introduced  into  the  House  of 
Representatives  by  ri'solution  condemning 
Mr.  Adams  and   a   long  debate  followed.     A 


154       THE    LAW    OF    CONSTKUCTIVE    CONTEMPT. 

sul)stitute  for  the  eoiidenining  resolutions  was 
offered  approving  the  action  of  the  President. 
The  debates  on  this  question  were  very  able  and 
exciting-  and  were  pai'ticipated  in  against  the 
administration  by  Livingston,  -Gallatin,  and 
others  and  in  favor  of  the  administration  by 
John  Marshall,  then  a  member  of  the  House, 
who  afterwards  became  the  great  Chief  Jus- 
tice of  the  Supreme  Court  of  the  United 
State,  Bayard,  and  others.  The  condemna- 
tory resolutions  were  finally  defeated  by  a 
vote  of  sixty-two  to  thirty-five  and  there  the 
matter  ended,  the  approving  resolutions  never 
having  been  voted  on.  In  the  fall  of  1800,  a 
handbill  was  issued,  inclosed  in  black  lines 
like  the  "coffin  handbills"  of  the  times  and 
was  posted  throughout  the  country  as  fol- 
lows :  — 

"  Reader,  if  thou  art  a  Christian  and  a  free- 
man, consider  by  what  unexampled  causes  it 
has  become  necessary  to  construct  this  monu- 
ment of  national  degradation  and  individual 
injustice  which  is  erected  to  commemorate  a 
citizen  of  the  United  States,  Jonathon  Rob- 
bins,  mariner  and  native  of  Danbury  in  the 
pious  and  industrious  State  of  Connecticut, 
who  under  the  Presidency  of  John  Adams 
and  by  his  advice,  when  Timothy  Pickering 
was  Secretary  of  State,  was  delivered  up  to 
the  British  government  by  whom  he  was 
ignominiously  j)ut  to  death  because  he  was  an 
Amei'ican  citizen ;  who  after  having  been 
barbarously  forced  into  the  service  of  his 
country's  worst    enemy  and    forced  to    fight 


THE  LAW  OF  CONSTRUCTIVE  CONTEMPT.   155 

against  bis  conscience  anrl  his  country  (jn 
board  tbc  Britisb  frigate  llerniione,  com- 
manded by  a  monster  of  the  name  of  Pigot, 
bravely  asserted  his  light  to  freedom  as  a  man 
and  boldly  extricated  himself  fi'om  the  bond- 
age of  his  tyrannical  oppressors,  after  devot- 
ing them  to  meiited  destruction.  If  you  are 
seamen,  pause  —  cast  your  eyes  into  your 
soul  and  ask  if  you  had  been  as  Robbins  was, 
what  would  you  have  done?  Wiiat  ought 
you  to  do?  And  look  at  Kobbins  hanging  at 
a  British  yard-arm  ;  he  was  your  comrade  and 
as  ti'ue  a  tar  as  ever  strapped  block  ;  he  was 
your  fellow-citizen  and  as  bi'ave  a  heart  as 
bled  at  Lexington  or  Trenton  ;  like  you,  he 
was  a  member  of  a  republic,  proud  of  ])ast 
glories  and  boastful  of  national  honor,  virtue, 
and  independence;  like  him,  you  one  day  may 
be  trussed  up  to  satiate  British  vengeance, 
your  heinous  crime  daring  to  jirefer  danger 
and  death  to  a  base  bondage,  Alas  poor  Kob- 
bins !  Alas  poor  liberty  !  Alas  poor  humbled 
and  degenerate  country  !  " 

Thus  it  seemed  th;it  every  effort  made  by 
the  Adams'  administi-ation  to  suppress  criti- 
cism only  added  fuel  to  the  flames;  and  this 
handbill  is  a  mountain  torrent  as  compared 
to  the  article  Cooper  published  and  for  which 
he  was  convicted.  There  is  very  little  doubt, 
as  Mr.  J(jhn  jNIarshall  showed  very  clearly  in 
his  speech,  that  President  Adams  was  entirely 
right  in  assuming  that  tiie  duty  to  extradite 
those  cliarged  with  crime  devolved  on  him, 
and  that  the  crime  with  which  Robbins   was 


156       THE    LAW    OF    CONSTRUCTIVE    CONTEMPT. 

charii't'fl,  havinof  been  committed  on  l)otird  n 
British  frigate,  was  exclusively  within  the 
jurisdiction  of  the  British  government;  but 
the  lettei-  of  the  Secretary  of  State  to  the 
judge  while  he  had  undei-  consideration  the 
question  of  the  validity  of  the  extradition 
papers,  was,  to  say  the  very  least,  very  indis- 
creet, and  it  gave  the  political  opponents  of 
the  administration  the  opportunity  to  make 
political  capital  out  of  the  case.  Mr.  Cooper, 
after  serving  his  time  out  in  jail  and  after  the 
inauguration  of  President  Jefferson,  became 
an  object  of  much  interest  on  account  of  his 
sufferings  and  he  was  regarded  by  the  Kepub- 
licans  as  a  great  martyr.  He  was  appointed 
a  commissioner  to  settle  the  Luzerne  difficul- 
ties in  Pennsylvania  —  a  duty  he  discharged 
with  remarkable  skill  and  success.  Then  he 
was  appointed  by  Gov.  Thomas  McKean,  the 
presiding  judge  of  the  eighth  circuit  of  the 
State.  He  had  untiring  industry,  philosophi- 
cal attainments,  and  a  courageous  temper 
but  he  was  a  failure  as  a  judge.  He  had  not 
what  the  lawyers  call  "  The  judicial  tempera- 
ment." He  was  so  severe  and  oftentimes 
whimsical  in  his  office,  especially  in  keeping 
order  in  the  coui't-room,  that  charges  were 
brought  against  him,  before  the  legislature  in 
1811,  for  his  impeachment.  One  of  these 
charges  was  that  while  on  the  bench  in  open 
court,  he  stated  that  the  Presbyterian  and 
Quaker  professions  of  faith  w^ere,  "  all  damned 
nonsense."  He  was  also  charged  with  cor- 
rupt    practices.      The    legislature    examined 


THE    LAW    OF    CONSTRUCTIVE    CONTEMl'T.        157 

into  the  matter  aiul,  while  not  finding  aiiy- 
tliing  in  the  charges  that  justified  articK-s  of 
impeachment,  adopted  an  address  to  the 
governor  to  I'emove  him,  which  was  done. 
Heie  again  we  must  note  the  stiange  vicissi- 
tudes of  a  partisan.  This  attempt  to  impeach 
Cooper  V, as  made  !)y  tlie  same  jKU-ty  with 
which  he  had  been  aftihated  and  the  same 
party  that  had  instigated  the  impeachment  of 
Chase.  Here  again,  he  showed  his  fickleness 
and  turned  against  the  Kepuhlican  party. 
Like  Callender,  he  felt  a  natural  disgust 
when  he  found  that  under  Jefferson  many 
men  weie  |)ut  ahead  of  him  who  had  not  re- 
ceived the  honor  of  martyrdom  under  Mr. 
Adams.  In  181],  he  said  he  had  gone  to 
France  in  1792  as  an  enthusiast  and  returned 
in  disgust,  and  after  seventeen  yeai's  spent 
here,  he  had  found  that  a  Democratic  govern- 
ment was  not  as  perfect  in  practice  as  it  was 
l^eautiful  in  theory. 

]\rr.  Cooper's  fine  chemical  acquii'ements, 
which  during  all  the  storms  of  his  eventful 
life  had  never  been  submerged,  now  gave  him 
a  safe  I'etreat.  lie  was  fii'st  placed  in  a  phil- 
osophical professorship  in  Dickenson's  Col- 
lege and  afterwards  in  a  highly  honorable 
post  in  the  University  of  Pennsylvania,  which 
he  finally  abandoned  for  the  Chemical  Chair 
in  Columbia  College,  South  Carolina,  of 
which  he  soon  became  president.  lie  took  a 
bold  part  in  the  nullification  controversy'  in 
1832,  issuing  documents  of  the  most  ultra 
States'  rights  tone  which  showed  that  he  had 


158   THE  LAW  OF  CONSTRUCTIVE  CONTEMPT. 

lost  notliing  of  the  fire  of  the  pamphleteer  of 
1795-1800.  He  died  in  1840  when  engaged 
in  revising  the  South  Carolina  statutes,  a 
duty  charged  on  him  hy  the  legislature,  after 
having  published  besides  numberless  tracts 
on  politics,  divinity,  and  metaphysics,  a 
treatise  on  the  bankrupt  laws,  a  translation 
of  Justinian,  a  treatise  on  political  economy, 
a  manual  of  chemistry,  as  well  as  a  general 
compendium  of  useful  information. 

In  1840  Congress  i-efunded  to  him  the  fine 
that  he  had  paid,  with  interest  thereon. 


APPENDIX  G. 

BATTLES    FOR    THE  FREEDOM  OF    THE    PRESS  — THE 
ALIEN  AND  SEDITION    LAWS. 

Callexder's  Case.  —  The*  most  i)ic'tiir- 
esque  and  dramatic  case  arising  under  the 
Sedition  Law  was  that  of  James  Thomp- 
son Caliender,  on  account  of  tlie  actors  aiul 
the  conduct  of  the  trial  as  well  as  on  account 
of  the  law  under  which  the  trial  was  had. 
Caliender  was  a  Scotchman,  and  wrote  a 
work  called  "  The  Political  Progress  of  Gi'eat 
Britain,"  on  account  of  which  he  had  to 
leave  England.  lie  came  to  this  countiy  and 
took  charge  of  the  Richmond  Examiner. 
He  was  a  fiery  Rejniblican,  and  in  the  early 
part  of  the  campaign  of  1800,  he  wrote  a 
pamphlet  entitled  "  The  Prospect  Before 
Us,"  which  was  circulated  as  a  campaign 
document  against  the  administration  and  in 
favor  of  Mr.  Jefferson.  Samuel  Chase,  an 
Associate  Justice  of  the  Supreme  Court  of 
the  United  States,  who  had  tried  the  Cooper 
case  at  Philadelphia  in  April,  1800,  and  who 
lived  at  Baltimore,  went  to  Kichmond  in  May, 
1800,  and  it  was  alleged  that  befoi-e  leaving 
home  he  obtained  a  copy  of  the  "  Prosj)ect 
Before  Us,"  and  remarked  that  he  would  go 
down  to  Richmond  and  teach  the  lawyers  there 
the  difference  between  the  licentiousness  and 
the  liberty  of  the  press,  and  even  before  he 
reached  Richmond,  affidavits  were  made  set- 
ting out  his  remarks  and  were  cii-culated 
thi'oughout  the  country,  and  threats  were  then 

(159) 


160   THE  LAW  OF  CONSTRUCTIVE  CONTEMPT. 

iniulc  that  Mr.  Justice  Chase  would  be  im- 
peached. When  the  justice  arrived  at  the 
court  house  in  Richmond,  he  found  it  filled 
with  the  most  eminent  lawyers  of  Virginia, 
and  ex[)ectation  was  at  a  high  pitch.  Cal- 
lender  was  indicted  in  due  time  by  the  ^rand 
jury,  and  arrjiigned  before  Mr.  Justice  Chase 
foi-  trial.  Tile  most  important  parts  of  tlie 
"Prospect  Before  Us  '  which  were  made  the 
basis  of  the  charge  in  the  indictment  were  as 
follows :  — 

"  The  reign  of  Mr.  Adams  has  been  one 
continued  tempest  of  malignant  passions.  As 
President,  he  has  never  o)3ened  his  lips  or  lifted 
his  pen  without  threatening  and  scolding;  the 
grand  object  of  his  administration  has  been  to 
exasperate  the  rage  of  contending  parties,  to 
calumniate  and  destroy  ever}'  man  who  differs 
from  his  opinions.  Mr.  Adams  has  labored 
with  melancholy  success  to  break  up  the  bonds 
of  social  affection  and  friendship,  to  extinguish 
the  only  gleam  of  hapjiiness  that  glimmers 
through  the  dark  and  despicable  farce  of  life. 
*  *  *  Adams  and  Washington  have  since 
been  shaping  a  series  of  these  paper  jobbers 
into  judges  and  embassadors,  as  their  whole 
courage  lies  in  want  of  shame ;  these  pol- 
troons, without  risking  a  manly  and  intelli- 
gible defense  of  their  own  meanness,  raise  an 
affected  yelp  against  the  corruption  of  the 
French  Directory,  as  if  any  corruption 
would  be  more  venal,  moi'c  notorious, 
more  execrated  than  their  own.  The  ob- 
ject of    Mr.    Adams    was    to    commence    a 


THE    LAW    OF    CONSTRUCTIVK    CONTEMPT.        1»51 

Fi-ench  war,  professedly  for  the  sake  of  sup- 
porting American  commerce,  Ijutin  reality  for 
the  sake  of  yoking  into  alliance  with  the 
British  tyrant  *  *  *  You  will  choose 
between  that  man  whose  life  is  unspotted  by 
crime  and  that  man  whose  hands  are  reeking 
with  the  blood  of  the  pooi',  friendless  Con- 
necticut sailor.  I  see  the  tear  of  indignation 
starting  on  your  cheek!  You  anticipate  the 
name  of  John  Adams.  Every  feature  in  the 
conduct  of  Mr.  Adams  forms  a  distinct  and 
additional  evidence  that  he  was  detei-mined, 
at  all  events,  to  embroil  us  in  war  with 
France.  Mr.  Adams  has  only  completed  the 
scene  of  ignominy  which  Mr.  Washington 
began  *  *  *  He  was  a  professed  aristo- 
crat ;  he  had  proved  faithful  and  serviceable 
to  the  British  interest  *  *  *  By  sending 
these  embassadors  to  Paris,  Mr.  Adams  and 
his  British  faction  designed  to  do  nothing  but 
mischief.  In  that  paper  with  all  the  cowardly 
insolence  arising  fiom  his  assurance  of  per- 
sonal safet}"",  but  without  the  propriety  or 
sublimity  of  Homer's  Achilles,  this  hoary- 
headed  incendiary,  this  libeler  of  the  govern- 
ment of  Virginia,  howls  out  to  arms  I  then  to 
arms  J  *  *  *  When  a  chief  magistrate, 
both  in  his  speeches  and  newspapers,  is  con- 
stantly reviling  France,  he  can  neither  expect 
nor  desire  to  live  long  in  peace  with  her. 
Take  your  choice  then  between  xVdams,  war 
and  beggary,  and  Jefferson,  peace  and  com- 
petency." 

Mr.    Justice   Chase    did  not    conduct  this 
11 


162   THE  LAW  OF  CONSTRUCTIVE  CONTEMPT. 

trial  with  as  much  fairness  and  cahnness  as 
he  did  that  of  Cooper  at  Philadelphia.  He 
had  tried  the  case  of  John  Fries,  one  of  the 
Northampton  insurgents,  at  Philadelphia,  and 
had  aroused  a  great  deal  of  indignation  among 
the  members  of  the  bar  on  account  of  the 
methods  he  adopted,  and  he  was  very  severely 
criticised  for  this  and  it  is  charged  that  the 
trial  of  Fries  and  of  Cooper  had  excited  him 
to  a  high  pitch,  and  when  he  came  to  the 
trial  of  Callender,  he  seems  to  have  lost 
the  judicial  temper  entirely  and  assumed 
that  of  an  excited  partisan  of  Mr.  Adams. 
Mr.  Carson,  in  his  history  of  the  Supreme 
Court  of  the  United  States,  says  •  this  of 
Chase:  "Irascible,  vain,  overbearing  and 
sometimes  tyrannical,  but  learned,  able,  pat- 
riotic and  of  spotless  honor  and  with  an  in- 
stinct for  tumult  and  a  faculty  for  ]Dromoting 
insurrections  at  the  bar,  moving  perpetually 
with  the  mob  at  his  heels,  a  suite  from  which, 
as  Dr.  Wharton  says,  '  even  the  judicial  office 
could  not  separate  him:'  he  trusted,  with 
general  success,  to  his  fearlessness  to  extri- 
cate himself  from  the  disorders  which  his  im- 
prudence fomented."  Such  eminent  counsel 
as  Hay,  Nicholas,  and  William  Wirt,  ap- 
peared for  Callender,  and  the  conduct  of  the 
trial  and  the  rulings  of  the  judge  w^ere  so 
contrary  to  wdiat  is  ordinarily  done,  that  the 
indignation  of  these  lawyers  and  the  whole 
public  were  intensely  excited.  The  news- 
papers of  the  day,  for  the  first  time,  pub- 
lished the  speeches  of  the    lawyers,  the  evi- 


TIIK    LAW    OF  CONST  KLCTIVE    CONTKMI'T.        1(33 

dence,  and  the  rulings  of  tlie  court  in  extciiso 
and  this  ci'cated  the  wildest  excitement 
thi'oug-hont  the  whole  country. 

The  statement  in  the  pamplilet  that  the 
hands  of  Mr.  Adams  were  "  i-eeking  with  the 
blood  of  the  poor,  friendless  Connecticut 
sailor,"  refers,  of  course,  to  Jonathon 
Robbins. 

In  this  case,  as  indeed  in  all  the  cases 
arising  under  the  Sedition  Law,  the  defend- 
ant insisted  that  that  law  was  unconstitutional 
and  void.  Mr.  William  Wirt,  one  of  the 
most  eminent  and  influential  lawyers  of  the 
period,  in  his  defense  of  Callender,  made  one 
remarkable  point.  It  was  then  a  mooted 
question  whether  even  the  courts  were 
authorized  under  our  Constitution  to  declare 
an  act  of  Congress  unconstitutional,  but  Mr. 
Wirt  took  several  steps  in  advance  of  that 
proposition  and  argued  that  the  jury  had  the 
power  and  right  to  do  that.  He  persisted  in 
this  argument  to  such  an  extent  that  the 
court  ordered  him  to  take  his  seat,  holdino- 
first,  that  the  law  was  constitutional,  and 
second,  that  it  was  not  within  the  province  of 
the  jur}'  to  pass  on  such  a  question  and  he 
emphatically  refused  to  permit  Mr.  Wii't  to 
argue  that  point  to  the  jury.  During  the 
trial,  all  three  of  the  defendant's  attorne3's 
were  successively  ordei-ed  by  the  court  to  take 
their  seats.  There  can  be  but  little  doubt 
that  the  defense  in  this  case  so  planned  in  ad- 
vance and  cari'ied  that  plan  out  to  make  this 
trial  an  issue  in    the  then   pending   campaign 


1(>4       THE    LAW    OF    CONSTRUCTIVE    C^ONTEMTT. 

and  they  succeeded  to  their  entire  satisfaction. 
Callender  was  convicted  and  his  punishment 
fixed  at  a  fine  of  two  hundred  dollars  and  im- 
prisonment in  jail  for  nine  months. 

By  the  time  this  trial  was  ended,  Mr.  Adams 
and  his  friends  evidently  saw  that  their  re- 
pressive measures  were  making  things  worse 
and  there  was  no  impoitant  tiial  under  the 
law  after  that.  March  3,  1801,  this  odious 
law  expired  according  to  its  own  terms  and 
the  spell  was  broken.  The  Adams  adminis- 
tration for  sixteen  months  had  thoroughly 
tested  the  efficiency  of  repressive  measures 
to  prevent  adverse  criticism  and  had  ignomin- 
iously  failed.  The  more  it  prosecuted,  the 
more  coarse  and  vituperative  the  criticism 
became,  and  on  March  4,  1801,  Mr.  Adams 
was  so  angry  and  felt  so  humiliated,  not  so 
much  because  he  had  been  defeated  as  on 
account  of  the  causes  of  his  defeat,  that  he 
and  his  wife  got  into  a  carriage  and  left 
Washington  without  waiting  to  attend  or  see 
Mr.  Jefferson's  inauguration.  A  change 
came  over  the  spirit  of  the  American  people 
in  a  day.  March  3  was  very  different  from 
March  I,  1801.  Mr.  Jefferson,  after  having 
carried  on  a  campaign,  unexampled  for  its 
bitterness  and  personal  animosities,  in  his 
inaugural  address  announced,  that,  "  we  are 
all  Republicans  —  we  are  all  Federalists." 

But  now  it  came  Jefferson's  turn  to  have 
trouble  with  the  press.  He  pardoned  Cal- 
lender as  he  did  all  others  who  were  still  in 
prison  or  under  indictment,  after  his  inaugu- 


TlIK    LAW    OF    CON8TKUCTIVK    CONTEMI'T.        1  <!5 

ration.  ]N[i-s.  Aduins  inn  letter  to  Mr.  Jeffer- 
son had  accused  him  of  liberating  "a  wretch 
who  was  suffering  for  a  libel  against  Mi-. 
Adams  "  and  replying  to  that  charge  in  a  let- 
ter to  Mrs.  Adams  under  date  of  July  22, 
1804,  Mr.  Jeffei-son  said,  *'  I  discharged  every 
person  under  punishment  or  [)rosccution  under 
the  Sedition  Law,  because  I  considered  and 
now  consider  that  law  to  be  a  nullity,  as  abso- 
lute and  as  palpable  as  if  Congress  had  ordered 
us  to  fall  down  and  worship  a  golden  image; 
and  that  it  was  as  much  my  duty  to  arrest  its 
execution  in  every  stage  as  it  would  have 
been  to  have  rescued  from  the  fiery  furnace, 
those  cast  into  it  for  refusing  to  worship  the 
image." 

Callendei',  on  his  liberation,  feeling  he  had 
suffered  martyrdom  for  the  Republican  cause, 
applied  to  the  President  for  the  pc^stmaster- 
ship  of  Richmond  and  failing  to  get  it,  he 
turned  against  the  administration  and  became 
its  bitter  foe.  lie  c;une  in  charge  of  a  paper 
of  Richmond  called  The  Recorder  and  he 
went  as  far  in  his  denunciation  of  Jefferson  in 
that  papei"  as  he  had  gone  in  former  years 
airainst  Mr.  Adams.  ^Hie  Federalists  made 
use  of  their  new-found  friend  and  his  hitherto 
obscui'e  journal  found  its  way  to  all  parts  of 
the  country.  Callender  attacked  Mr.  Jeffer- 
son personall}',  accusing  iiim  of  having  paid 
for  the  articles  he  had  published  against  Mr. 
Adams  and  for  the  publication  of  which  he 
had  been  convicted  of  libel.  He  dragged  the 
President's  private  character  before  the  pub- 


166   THE  LAW  OF  CONSTRUCTIVE  CONTEMPT. 

lie  and  every  private  act  which  could  be  tor- 
tured by  any  means  into  a  vice  was  hi  id  before 
the  people.  He  sought  in  every  way  possible 
to  bring  his  quandom  fi'iend  into  public  con- 
tempt. His  publications  and  allegations  gave 
rise  to  the  article  Crosswell  published,  which 
became  the  basis  of  a  charge  of  libel  against 
him  and  Mr.  Jefferson  found  it  necessary  to 
explain  his  relations  with  Callender,  not  only 
in  his  lettei-  to  Mrs.  Adams,  but  also  in  one  to 
Monroe,  an  account  of  which  was  given  in  the 
history  of  Crosswell' s  case. 

Callender,  having  been  made  an  issue  in 
the  Presidential  campaign  of  1800  and  after 
having  deserted  his  old  friends  and  gone  over 
to  his  former  enemies,  met  a  miserable  death. 
lie  was  found  dead  in  the  James  River  near 
Richmond,  having  been  drowned,  as  it  was 
supposed,  while  in  a  state  of  intoxication. 

When  Congress,  in  1844,  refunded  to  Has- 
well's  representatives  the  fine  which  had  been 
imposed  on  him  and  which  he  had  |)aid,  one 
of  the  most  exciting  and  sensational  chapters 
in  American  history  was  closed.  The  object 
lessons  afforded  the  American  people  by  the 
enforcement  of  the  Sedition  Law  were  so  sen- 
sational and  impressive  and  the  results  so  dis- 
astrous to  those  who  by  means  of  that  law 
tried  to  suppress  adverse  criticism  of  the  press 
that  no  party  since  has  even  suggested  a 
similar  law.  Ever  since  then,  the  criticised 
have  deemed  it  wise  and  prudent  to  suffer  the 
ills  they  endure  rather  than  fly  to  others  they 
know  not  of. 


TIIIC    LAW    OF    CONSTRUCT! VK    CJONTK.MI'T.         1  < M 

Althoug-li  JeCfcM-son  aiwl  Adams  liad  Ijeen 
bitter  political  opponents  np  to  180(>,  in  aftcM* 
years  they  became  very  warm  friends  and  they 
kept  np  a  correspondence  as  long  as  they  both 
lived.  These  two  remarkable  Revolntionary 
pati-iots,  who  had  contributed  so  much  to  the 
glory  and  development  of  their  country,  both 
died  on  the  same  day  and  that  on  the 
anniversnry  of  our  independence,  the  fourth 
day  of  July,  182(5. 

Chase's  Case.  —  As  has  been  stated,  the 
agitation  for  the  impeachment  of  Judge  Chase 
began  before  Callender  was  tried  and  it  ceased 
not  till  180^,  when  the  majority  of  the  Re- 
publicans in  the  House  of  Kepresentatives 
became  strong  enough  to  prefer  and  it  did 
prefer  articles  of  impeachment  against  him 
and  he  was  tried  by  the  Senate  in  1805.  The 
principal  charges  contained  in  the  impeach- 
ment articles  grew  out  of  the  trial  of  Fries  at 
Philadelphia  and  the  trial  of  Callender,  but 
when  it  came  to  a  vote,  all  the  charges  ex- 
cept those  connected  with  the  Callender  tiial, 
were  susbstantially  ignored. 

During  the  trial,  Callender  called  John 
Taylor  i\s  a  witness  in  his  own  behalf  but  the 
judge  refused  to  permit  his  examination  until 
the  attorneys  informed  him  what  they  ex- 
pected to  prove  ;  he  even  required  theni  to 
write  out  and  submit  to  him  the  questions 
they  proposed  to  propound  to  the  witness, 
which  being  done  and  linding  the  object  to 
be  to  [)rove  that  Adams  was  an  aristocrat  and 


1G8       THK    LAW    OV    CONSTRUCTIVE    CONTEMPT. 

had  advocated  measures  in  Congress  which 
were  regarded  by  the  Republicans  as  inimical 
to  the  best  interests  of  the  people,  he  refused 
to  allow  the  witness  to  be  examined.  This 
ruling  of  his  and  his  general  conduct  in  re- 
gard to  this  point  were  charged  in  the  Third 
Article  of  the  Impeachment  as  a  high  mis- 
demeanor; and  eighteen  senators  voted  him 
guilt}'^  on  this  charge  and  sixteen  declared  him 
not  guilt3\  Article  Four  of  the  Im])eachment 
charged  him  with  rude,  contemptuous  and  in- 
decent behavior  during  the  trial,  and  again 
there  were  eighteen  senators  against  him  to 
sixteen  for  him  on  this  charge.  There  not 
being  a  majority  of  two-thirds  in  favor  of  his 
conviction,  he  was  duly  acquitted.  He  was 
thus  saved,  so  it  was  thought,  by  reason  of 
his  age  and  the  eminent  services  he  had  ren- 
dered the  country  in  former  years.  lie  had 
stood  firmly  and  courageously  for  American 
liberty  during  the  dark  days  of  the  Kevolu- 
tionary  AVar  ;  he  was  one  of  the  immortal  sign- 
ers of  the  Declaration  of  Independence  ;  he 
was  a  member  of  Congress  from  1774:  to  1784 
and  he  was  an  appointee  of  Washington  who 
made  him  an  associate  justice  of  the  Supreme 
Coui't,  January  27,  1796. 


APPENDIX  II. 

TIIK    BATFLK    FOIi    TIIK    FKEKDOM  OF  THK  PHKSS  IN 
CONGRESS  — PECK'S  IMPEACHMENT. 

In  1826-31  arose  another  case  which  in- 
fluenced national  legishition  on  the  subject  of 
the  impeachment  for  contempt  of  court,  and 
that  was  the  case  of  James  II.  Peck,  judge  of 
the  United  States  District  Court  at  St.  Louis. 
At  that  time,  there  was  a  laige  number  of 
cases  in  the  coui'ts  involving  the  title  to  lands 
which  were  alleged  to  have  been  granted  to 
})rivate  [)ai'ties  by  the  Spanish  government,  in 
the  Louisiana  Territory,  fi'om  the  time  it 
acquii'ed  that  territory  from  France  to  its  ces- 
sion to  us  in  1803.  One  of  these  cases, 
Julia  Soulard  and  others  against  the  United 
States,  came  before  Judge  Peck  for  adjudi- 
cation. Luke  Edward  Lawless,  a  mem- 
ber of  the  bar  of  the  Federal  court  at  St. 
Louis,  appeared  as  attorney  for  the  plain- 
tiffs in  that  case  and  Judge  Peck,  when  In- 
came  to  dispose  of  it,  WM'ote  a  lengthy  opin- 
ion and  did  what  was  then  in  the  West,  a 
very  unusual  thing,  i)ublished  it  in  the 
Republican,  now  the  St.  Louis  Repuhlic. 
in  Ai)i"il,  1826;  and  Lawless,  on  April  8  of 
the  same  year,  wrote  and  caused  to  be  pub- 
lished in  the  Missouri  Advocate  and  St.  Louis 
Enquirer,  an  article  signed,  "  A  Citizen," 
in  which  the  soundness  of  the  ()i)inion  of  Judge 
Peck  was  attacked,  but  not  in  offensive 
language.  Mr.  Lawless  in  the  article  stated  : 
"Judge  Peck  in  his  oi)inion,  it  seems  to  me, 

(U;9) 


170   Till-:  LAW  OF  CONSTRUCTIVE  CONTEMPT. 

erred  in  the  following-  assumptions  as  well  of 
fact  as  of  doctrine;"  and  then  he  gave  eight- 
een specifications  of  error,  some  of  history, 
some  ol"  fact  and  some  of  law,  but  all  couched 
in  very  respectful  terms.  The  judge  took 
umbrage  at  the  article,  feeling  that  it  was  in- 
defensible for  a  lawyer  who  was  an  officer  of 
his  court  to  go  before  the  public  with  objec- 
tions to  his  decision  and  he  caused  Lawless 
to  be  brought  before  him  to  answei'  for  con- 
tempt of  court.  On  being  arraigned.  Law- 
less insisted  that  the  court  had  no  jurisdiction 
to  try  him  for  any  publication  he  might  cause 
to  be  inserted  in  the  newspapers,  even  if  such 
publication  was  libelous  and  was  calculated 
and  intended  to  bring  the  judge  into  con- 
tempt or  to  impede  or  improperly  influence 
the  administration  of  law.  He  denied,  how- 
ever, that  the  article  was  objectionable  in  any 
sense,  and  said  that  he  intended  thereby  no 
disrespect  to  the  court,  but  his  sole  object 
was  to  present  his  views  in  which  a  large 
number  of  people  had  a  deep  interest  and  be- 
sides that,  he  could  not  have  intended  to  in- 
fluence the  decision  in  that  case  because, 
at  the  time  of  the  publication,  the  case  had 
already  been  disposed  of.  The  judge  overruled 
all  these  points  and  held  that  the  article  was 
calculated  and  intended  to  bring  him  into  con- 
tempt before  the  people  and  to  interfere  with 
and  influence  the  disposition  of  other  cases  then 
pending  before  him,  involving  the  same  ques- 
tions. Upon  a  final  hearing,  the  judge  ordered 
that     Lawless     be    imprisoned     twenty-four 


TIIK    LAW    OF    CONSTRUCTIVK    CONTK.M  IT.        1  (  1 

hours  and  be  di.sbai'i'cd.  In  Dt'ccuihci',  182(3, 
Lawless  presentc^d  to  the  national  House  of 
Kepresentatives  the  facts  in  this  case  and  asked 
for  Peck's  iinpeaelmient.  l*e(dc  replied  to  the 
charg-es  Lawless  made  and  the  matter  hun^* 
fii'e  for  some  cause  until  April  lo,  1830,  when 
the  House  of  Repi'esentatives  carried  ai'ticles 
of  impeachment  ag'ainst  Peck  by  a  vote  of 
one  hundred  and  twenty-three  to  fort^'-nineand 
he  was  arraigned  upon  them  before  the  Senate 
as  a  high  court  of  impeachment.  Among  the 
attorneys  who  api)eared  in  this  case  were 
James  Buchanan,  afterwards  President  of 
the  United  States,  for  the  prosecution,  and 
William  Wirt,  for  the  defense,  the  same  AVirt 
who  had  been  such  a  consj)icuous  figure  in  the 
events  leading  up  to  and  in  the  trial  of  Chase,  in 
180J;-5.  The  trial  terminated  January  31, 
1831,  by  an  acquittal,  the  vote  standing 
twent3^-one  for  and  twenty-two  against  con- 
viction. The  whole  ground  of  the  power  as 
well  as  the  propriet}^  of  courts  punishing  for 
contempts  not  committed  in  their  immediate 
presence  was  thoroughly  gone  over  b}'  the 
ablest  lawyers  of  the  country,  and  it  is  prob- 
able Peck's  ac(|uittal  resulted  more  fi-om  a 
belief  of  the  senators  that  he  acted  in  good 
faith  in  exercising  jurisdiction  and  in  holding 
thearti(de  in  question  a  contempt,  rather  than 
to  the  fact  that  those  who  voted  for  him  con- 
curi'ed  in  his  views,  especially  as  to  the  charac- 
ter of  the  article.  At  this  day,  such  an  article 
as  the  one  Lawless  published  would  be  re- 
garded as  harmless,  if  not  exceedingly  tame. 


172       TllK    LAW    OF    CONSTRUCTIVE    CONTEMPT. 

The  trial,  however,  made  a  profound  impres- 
sion on  the  whole  country  and  on  March  2, 
1831,  a  little  over  one  month  from  its 
termination,  Cong-ress  enacted  a  law  intro- 
duced by  Mr.  Buchanan,  which  limited  and 
defined  the  power  of  the  Federal  courts  to 
punish  for  contempts.  It  provided  :  "  That 
the  power  of  the  several  courts  of  the  United 
States  to  issue  attachments  and  inflict  sum- 
mary punishment  for  contempts  of  court 
shall  not  be  construed  to  extend  to  any  cases 
excei)t  the  misbehavior  of  any  person  or 
persons  in  the  presence  of  the  said  courts 
or  so  near  thereto  as  to  obstruct  the  ad- 
ministration of  justice,  the  misbehavior  of 
any  of  the  officers  of  the  said  courts  in  their 
official  transactions,  and  the  disobedience  or 
resistance  by  any  oflScer  of  the  said  courts, 
party,  juror,  witness  or  other  ])erson  or  per- 
sons to  any  lawful  writ,  process,  order,  rule, 
decree,  or  command  of  the  said  courts."  It 
provided,  however,  that  it  should  be  a  criminal 
offense  for  anyone  to  corruptly  by  threats  or 
force  to  endeavor  to  influence,  intimidate,  oi* 
impede  any  juror,  witness  or  officer  in  the 
discharge  of  his  duty,  or  corruptly  by  force 
or  threats  to  obstruct  or  impede  the  due  ad- 
ministration of  justice  in  the  courts,  and  sul)- 
jected  him  to  an  indictment. 

The  Supreme  Court  of  the  United  States 
sustained  the  constitutionality  of  this  act  in 
Ex  parte  Kobinson,  19th  Wall.  505.  This 
case  arose  in  the  United  States  District  Court 
for  the  Western  District  of  Arkansas  in  1873. 


THE    LAW    OF    CONSTRUCTIVE    CONTEMPT.        173 

Kobinsoii,  bt'iiig-  a  member  of  the  bar  of  that 
eoiii'tjWa.s  attached  as  for  a  contempt  and  was 
charged  with  having  induced  a  witness  to 
evade  the  service  of  process  on  him.  After 
a  heai'ing,  the  court  disban-ed  iiim  and  Robin- 
son brought  the  case  before  the  Supreme 
Court  of  the  United  States  on  aj)plication  for 
a  writ  of  mandamus  to  compel  the  court  be- 
low to  restore  his  name  to  the  roll  of  lawyers. 
The  Supreme  Court,  referring  to  the  act  of 
Uiivch  2,  1831,  said:  "The  act,  in  terms, 
ai)i)lies  to  all  courts;  whether  it  can  be  held 
to  limit  the  authority  of  the  Supreme  Court, 
which  derives  its  existence  and  powers  from 
the  Constitution,  may  perhaps  be  a  matter  of 
doubt.  But  that  it  api)lies  to  circuit  and  dis- 
trict courts,  there  can  be  no  question.  These 
courts  were  created  by  act  of  Congress. 
Their  powers  and  duties  depend  upon  the  act 
calling  them  into  existence  or  subsequent  acts 
extending  or  limiting  their  jurisdiction.  The 
act  of  1831  is  thei'efore  to  them  the  law  spe- 
cifying the  cases  in  which  summary  punish- 
ment for  contempts  may  be  inflicted.  *  *  * 
As  thus  seen,  the  powei*  of  these  coui'ts  in 
the  punishment  of  contempts  can  only  be  exer- 
cised to  insure  order  and  decorum  in  their  pres- 
ence, to  secure  faithfulness  on  the  part  of  their 
ofticers  in  their  official  transactions,  and  to 
enforce  obedience  to  their  lawful  orders,  judg- 
ments and  processes."  The  court  ordered 
Robinson  to  be  reinstated  as  a  member  of  the 
bar  of  the  court  below. 

So,  therefore,  so  far  as  the  Supreme  Court 


174       THE    LAW    OF    CONSTKUCTIVE    CONTEMPT. 

of  the  United  States  is  concerned,  the  ques- 
tion whether  courts  created  by  a  constitution 
which  vests  in  them  "  all  judicial  power"  are 
beyond  the  reach  of  the  legislative  depart- 
ment in  respect  of  that  judicial  power,  is  yet 
an  open,  though,  as  stated  by  the  court,  a 
doubtful  one.  That  august  tribunal  has  never 
chosen  to  exercise  its  power  to  punish  for  con- 
tempt not  committed  in  its  presence,  though 
many  opportunitieshave  arisen  which  could  have 
been  seized  upon  to  put  in  operation  the  pro- 
cess of  attachment  for  contempt,  for  its  de- 
cisions and  its  judges  too  have  been  assailed 
in  numerous  cases  and  in  a  most  vindictive, 
turbulent  and,  in  many  cases,  malicious  way. 
Hitherto  the  judges  of  that  court  have  main- 
tained a  dignified  silence  and  non-action, 
assuming,  it  is  to  'be  presumed,  that  time 
would  vindicate  them  if  they  deserved  vindi- 
cation and  if  they  did  not  deserve  vindica- 
tion, no  action  they  could  take  would  bene- 
fit them. 

But  nevertheless,  one  thing  is  apparent  by 
the  passage  of  the  above  act  and  that  is  that 
Congress  does  not  believe  in  the  exercise  of 
the  jurisdiction  of  the  courts  to  punish  for 
contempts  not  committed  in  their  immediate 
presence,  and  it  is  made  plain  what  its  desire 
is  even  in  respect  of  the  Supreme  Court  itself. 


APPENDIX  I. 

THE  CONTEMPT  STATUTE  IN  FORCE  SINCE  1835  — 
THE  SECTIONS  ARE  THOSE  OF  THE  REVISION  OF 
189!». 

Sue.  1616.  May  Punish  for  Contempts. — 
Every  coiii't  of  record  shall  have  power  to 
punish,  as  for  a  criminal  contempt,  j^ersons 
g-uilty  of  any  of  the  following  acts,  and  no 
other:  First,  disorderly,  contem[)tuous  or  in- 
solent behavior,  committed  during  its  sitting, 
in  immediate  view  and  presence,  and  directly 
tending  to  interru])t  its  proceedings,  or  to  im- 
pair the  respect  due  to  its  authority;  second, 
any  breach  of  the  peace,  noise  or  other  dis- 
turbance, directly  tending  to  interi-upt  its 
proceedings;  third,  willful  disobedience  of 
any  process  or  order,  lawfully  issued  or  made 
by  it;  fourth,  resistance  willfully  offered  by 
any  person  to  the  lawful  order  or  process  of 
the  court;  fifth,  the  contumacious  or  unlaw- 
ful refusal  of  any  person  to  be  sworn  as  a 
witness,  or,  when  sworn,  the  like  refusal  to 
answer  any  legal  and  [)roper  interrogatory. 

Sec.  1617.  Punishment  for  Contem|)t.  — 
Punishment  for  Contempt  may  be  by  fine  or 
imprisonment  in  the  jail  of  the  county,  where 
the  court  may  be  sitting,  or  both,  in  the  dis- 
cretion of  the  court;  but  the  line  in  no  case 
shall  exceed  the  sum  of  fifty  dollars,  nor  the 
imprisonment  ten  days ;  and  where  any  per- 
son shall  be  committed  to  prison  for  the  non- 
payment of  any  such  fine,  he  shall  be 
discharged  at  the  expiration  of  thirty  days. 

(175) 


17<)       THE    LAW    OF    CONSTRUCTIVE    CONTEMPT. 

Sec.  1618.  May  be  Punished  Suminarilj.  — 
Contempt  committed  in  the  immediate  view 
and  presence  of  the  court,  may  be  punished 
summarily:  in  other  cases  the  party  charged 
shall  be  notified  of  the  acusation  and  have  a 
reasonable  time  to  make  his  defense. 

Sec.  1619.  Commitment  for  Contempt.  — 
Whenever  any  person  shall  be  committed  for 
any  contempt  specified  in  this  chapter,  the 
particular  circumstances  of  his  offense  shall 
be  set  forth  in  the  order  or  warrant  of  com- 
mitment. 

Sec.  1620.  Preceding'  Sections  Construed. — 
Nothing  contained  in  the  preceding  sections 
shall  be  construed  to  extend  to  any  proceed- 
ing against  parties  or  officers,  as  for  con- 
tempt, for  the  purpose  of  enforcing  any  civil 
right  or  remedy. 

Sec.  1621.  Parties  May  Be  Indicted,  when. — 
Persons  punished  for  contempt  under  the 
preceding  provisions,  shall,  notwithstanding, 
be  liable  to  indictment  for  such  contempt,  if 
the  same  be  an  indictable  offense :  but  the 
court  before  which  a  conviction  shall  be  had 
on  such  indictment  shall,  in  forming  its  sen- 
tence, take  into  consideration  the  punishment 
before  inflicted. 


APPENDIX   L. 

STATE  K.v  INK.    GROW,  Atty.-Gkx  ,  v.   SIIEPHEUD. 
(Supreme  Court  of  Missouri,  Oct.  13,  1903.) 

In  Banc.  Proceeding.s  for  coiitcMnpt  l^y  the 
State,  on  the  information  of  Edward  C.  Ci'ow, 
Attorney-Genei'al,  again.st  J.  M.  Shej)herd. 
Defendant  adjndged  gnilty  of  contempt. 

Tlie  Attorney-General,  for  plaintiff,  X.  M. 
Bradley,  and  Alexander  Xevv,  for  defendant. 

Marshall,  J.  This  is  an  ex  officio  informa- 
tion by  the  Attorney-General,  informing-  the 
court  that  the  defendant,  as  publisher  of  a 
certain  weekly  newspaper  at  Warrensbuig, 
Mo.,  called  the  Standard-Herald,  on  the  19th 
of  June,  1903,  published  in  said  paper  the 
following  article  :  "  When  a  citizen  of  Mis- 
soui'i  stoi)s  long  enough  to  think  of  the  condi- 
tion of  affairs  in  his  State,  it  is  enough  to 
chill  his  blood.  A  grand  jury  in  Cole  County 
has  just  found  indictments  against  four  mem- 
bers of  the  highest  lawmaking  body  in  the 
State,  and  the  St.  Louis  grand  jury  has  heard 
evidence  within  the  ])ast  few  months  that,  if 
it  had  the  necessary  jurisdiction,  would  have 
indicted  many  other  members  of  the  State 
Senate.  The  ^Missouri  citizen  has  also  seen 
the  Cole  County  grand  jui-y  dissolved  before 
the  work  mapped  out  for  it  was  hardly  begun, 
on  the  advice  of  the  Attorney-Genei-al  of  the 
State.  They  also  see  the  Chief  Executive 
sitting  passively  at  his  office  in  the  State- 
house,  not  making  a  move  to  bring  to  justice 
the  men  who  have  been  proven  guilty  of  bood- 

(177) 


178   THE  LAW  OF  CONSTRUCTIVE  CONTEMPT. 

ling-  in  the  Missouri  Legislature  by  the  St. 
Louis  griind  jury,  but  over  whom  the  authori- 
ties of  that  city  have  uo  jurisdictiou.  And 
now,  as  the  ca])sheaf  of  all  this  coi'i'U])tioii  in 
high  places,  the  Supreme  Coui't  has,  at  the 
whipcrack  of  the  Missouri  Pacific  Railroad, 
sold  its  soul  to  the  corporations,  and  allowed 
Rube  Oglesb}'  to  drag  his  wrecked  frame 
through  this  life  without  even  the  pitiful  re- 
muneration of  a  few  paltry  dollars.  Learned 
men  of  the  law  say  that  Rube  Oglesby  had  the 
best  damage  suit  against  a  corporation  ever 
taken  to  the  Supreme  Court.  This  ver\^  tribu- 
nal, after  reading  theevidence  and  hearing  the 
arguments  of  the  attorneys,  rendered  a  deci- 
sion sustaining  the  judgment  of  the  lower 
court,  which  decision  was  concurred  in  by  six 
of  the  seven  members  of  the  court.  This  is 
usually  the  end  of  such  cases,  and  the  deci- 
sion of  a  Supreme  Court,  once  made,  usually 
stands.  But  not  so  in  the  Oglesby  case. 
Three  times  was  this  case,  at  the  request  of 
the  railway  attorneys,  opened  for  reheai'ing, 
and  three  times  was  the  judgment  of  the  lower 
court  sustained.  But  during  this  time,  which 
extended  over  a  period  of  several  years,  the 
legal  department  of  this  great  corporation 
was  not  the  only  department  wdiich  was  busy 
in  circumventing  the  defeat  of  the  Oglesby 
case.  The  political  department  was  very, 
very  busy.  Each  election  has  seen  the  hoist- 
ing of  a  railway  attorney  to  the  Supreme 
Bench,  and,  when  that  body  was  to  the  satis- 
faction of  the  Missouri  Pacific,  the  onslaught 


THE    LAW    OF    CONSTRUCTIVE    CONTEMI'T.         179 

to  kill  the  Oglesby  case  beg-an.  A  motion 
for  a  rehearing  was  gi'anted,  and  at  the  hear- 
ing of  the  case  it  was  reversed  on  an  error  in 
record  of  the  trial  conrt,  and  was  sent  back  for 
retrial.  That  was  in  the  early  part  of  the 
year  1902.  The  case  was  tried  in  Sedalia  be- 
fore Circnit  Judge  Longan,  one  of  the  ablest 
jurists  in  the  State,  and  we  have  been  informed 
that  no  error  was  allowed  to  creep  into  the 
record  at  the  second  ti'ial.  Again  the  jury 
rendered  judgment  in  favor  of  Oglesby  for 
$15,000,  and  again  the  case  was  appealed  to 
the  Snj)reme  Court.  An  election  was  coming 
on,  and  the  railroad  needed  yet  another  man  to 
beat  the  Oglesby  case.  The  Democratic 
nominating  convention  was  kind  and  fur- 
nished him,  in  the  person  of  Fox.  The 
railroad,  backed  by  four  judges  on  the 
bench,  allowed  the  case  to  come  uj)  for 
final  hearing,  and  Monday  the  decision  was 
handed  down,  reversed  and  not  remanded  for 
retrial.  The  victory  of  the  railroad  has  been 
complete,  and  the  corruption  of  the  Supreme 
Court  has  been  thorough.  It  has  reversed 
and  stultified  itself  in  this  case  until  no  sane 
man  can  have  any  other  opinion  but  that  the 
judges  who  concurred  in  the  opinion  dismiss- 
ing the  Oglesby  case  have  been  bought  in  the 
interest  of  the  lailroad.  What  hope  iiave  the 
ordinary  citizens  of  Missouri  for  justice  and 
equitable  laws  in  bodies  where  such  open 
venality  is  practiced?  And  how  long  will 
they  stand  it?  The  corporations  have  long 
owned    the    Legislature,    now    they  own  the 


180        THE    LAW    OF    CONSTRUCTIVE    CONTEMPT. 

Supreme  Court,  aiul  the  citizen  who  applies 
to  either  for  juntiee  against  the  corporation 
gets  nothing.  Rube  Oglesby  and  his  attor- 
ney, Mr.  O.  L.  Honts,  have  made  a  sti'ong 
fight  for  justice.  They  have  not  got  it.  The 
quivering  limb  that  Rube  left  beneath  the 
rotten  freight  car  on  Independence  Hill,  and 
his  blood  that  stained  the  right  of  way  of  the 
soulless  corporation,  have  been  buried  be- 
neath the  wise  legal  verbiage  of  a  venal 
court,  and  the  wheels  of  the  Juggernaut  will 
continue  to  grind  out  men's  lives,  and  a 
crooked  court  will  continue  to  refuse  them 
and  their  relatives  damages,  until  the  time 
comes  when  Missourians,  irrespective  of  pol- 
itics, rise  up  in  their  might  and  slay  at  the 
ballot  box  the  corporation-bought  law-makers 
of  the  State." 

Upon  the  filing  of  said  information,  the 
court  caused  to  be  issued  against  the  defend- 
ant the  following  citation:  "  Whereas,  it  is 
I'eprescnted  to  our  Sui)i'eme  Court  in  banc,  by 
the  infoi'mation  of  Edward  C.  Crow,  Attor- 
ney-General of  the  State  of  Missouri,  ex  of- 
ficio, a  copy  of  which  information  is  hereto 
attached,  that  yon,  the  said  J.  M.  Shepherd, 
publisher  of  a  certain  weekly  newspaper  at 
the  city  of  Warrensburg,  Missouri,  called  the 
Standard-Herald,  did  on  the  19th  day  of 
June,  1903,  while  the  case  of  H.  R.  Oglesby, 
respondent,  against  the  Missouri  Pacific  Rail- 
way Company,  api)ellant,  was  and  still  is 
pending  in  this  court,  publish  a  certain  edi- 
torial and  article  then  and  there  charging  the 


THE    LAW    OF    CONSTRUCTIVE    CONTEMPT.         181 

Supreme  Court  of  tlie  State  of  Missouii,  and 
the  nu'inhei-s  tliei-eof,  witli  l)i-ibeiy  and  cor- 
ni[)ti()n,  ill  connection  with  the  action  of  the 
court  in  the  dis|)osition  of  said  case,  and  that 
you,  tlie  said  J.  X.  Shephei'd,  by  said  edi- 
torial and  article  aforesaid,  published  in  the 
said  Standard-HerahU  did  defame,  de^-rade, 
and  insnlt  tlie  Su[)reme  Coui't  of  the  State  of 
Missoui'i,  and  the  members  thereof,  and  did 
charge  the  said  court  and  its  members  with 
corruption  and  pai'tiality  in  the  discharge  of 
their  otticial  duties,  and  in  the  judicial  official 
determination  and  disposition  of  said  case  of 
Oglesby  vs.  The  Missouri  Pacific  Railway 
Company  |  7(5  S.  W.  — ],  and  that  said  action 
in  publishing  said  editoi-ial  and  article  brings 
the  Supreme  Court,  and  the  members  thei'e- 
of,  and  the  highest  department  of  the  judicial 
branch  of  the  State  government,  charged  with 
the  final  disposition  and  enforcement  of  law 
and  justice,  into  disrepute,  contumely,  and 
contempt,  and  tends  to  destroy  the  power  and 
influence  of  the  court  as  an  independent,  co- 
ordinate branch  of  the  State  government,  in 
the  enforcement  of  the  law  and  the  adminis- 
tration of  justice,  and  tends  to  and  does 
causelessly  inflame  and  incite  the  jn-ejudices 
of  the  peoi)le  against  the  said  Supreme  Couit, 
and  tends  to  and  does  affect  the  said  court 
so  as  to  directly  obstruct  and  interfere  with 
and  impede  the  administration  of  justice  in 
the  above-mentioned  cause,  and  which  said 
cause  is  now  and  here  pending  in  said  Su- 
preme Court:   Now,  therefore,  you,  the  said 


182       THE    LAW    OF    CONSTRUCTIVE    CONTEMPT. 

J.  M.  Shepherd,  are  hereby  commanded  to 
be  and  appear  before  the  Honorable  Supreme 
Court  of  Missouri,  in  banc,  on  Wednesda}'^, 
July  22, 1903,  at  nine  o'clock  in  the  forenoon, 
at  the  Supreme  Courthouse  in  the  City  of  Jef- 
ferson, in  the  county  of  Cole,  in  the  State  of 
Missouri,  then,  and  there  to  show  cause,  if 
any  you  have,  why  an  attachment  should  not 
issue  against  you  for  the  contempt  of  this 
coui't,  in  publishing-  said  editorial  and  article 
a»foi'esaid,  and  hereof  fail  not." 

On  the  return  day  of  the  rule  the  defendant 
filed  the  following  return  :  "In  obedince  to 
the  command  of  this  court  heretofore  made 
upon  him.  comes  J.  M.  Shepherd,  and  for  his 
return  to  the  order  to  show  cause  heretofore 
issue  herein,  resj^ectfully  shows:  (1)  That 
this  court  has  no  jurisdiction  to  hear  and  de- 
termine the  charge  as  contained  in  said  com- 
plaint. (2)  That  said  complaint  and  informa- 
tion does  not  state  facts  sufficient  to  authorize 
the  issuance  of  an  attachment  for  contempt 
of  this  court.  (3)  That  it  is  true  that  on  the 
19th  day  of  June,  1903,  and  long  prior  there- 
to, he  was,  and  is  still,  the  pubHsher  and  pro- 
prietor of  a  weekly  newspaper  published  in 
the  cit}'  of  Warrensburg,  State  of  Missouri, 
called  the  Standard-Herald,  and  that  at  said 
date  he  caused  to  be  published  in  said  news- 
paper the  article  set  out  in  full  in  said  com- 
plaint. (1:)  That  he  denies  the  other  allega- 
tions set  out  in  said  complaint  and  informa- 
tion, and  demands  strict  proof  thereof.  (5) 
Said  article  was  not  issued   or    circulated  in 


THE    LAW    OF    CONSTHKTIVK    CONTEMPT.        183 

the  ])i-c'S('nce  or  hearing  of  the  eourt,  and  was 
not  inteiuled  to  interfere,  nor  did  it  intei'fere, 
with  any  of  the  business  of  said  conrt,  oi-  any 
of  its  olHeers.    (6)  That  notliing  in  said  article 
I'eferred  to  in  said  information    tends    to,  or 
does  it,  affect  tlie  said  coui't  so  as  to  obstruct 
or  interfere  with  or  impede    the    administra- 
tion of  justice  l,)y  said  court.     (7)  That  at  the 
time  said  article  was  published  respondent  be- 
lieved the  cause  therein   referred  to  had  been 
finally  disposed  of  by  this  court,  and,  if  said 
cause  was  still  pending  in  this  court,  he  had 
no  knowledge  of  that  fact.    (8)  Said  complaint 
and  information,  and  the  notice  issued  there- 
in,  and  all  proceedings  thereunder,  were  and 
are  in  violation  of  section  14,   art.  2,  of  the 
Constitution  of  Missouri,  which  provisions  are 
specially  invoked  herein.     (9)  That  said  infor- 
mation,  and   the  i)roceedings   thereunder,   as 
proi)Osed,   deny  to  said  Shepherd  the  right  of 
a  trial  by  jury  of  questions  of  which  this  court 
has  no  ])ei-sonal  knowledge,  all  in  violation  of 
section  28,  art.  2,  of  the  Constitution  of  ]\[is- 
souri,  which  is  specially  invoked  herein.     (10) 
That  said  complaint,  and  the  i)roceedings  there- 
under, as  proposed,  ai'e  in  violation  of  section 
30,    art.    2,  of   the  Constitution  of    Missouri, 
which  is  specially  invoked  herein.     (11)  That 
said  complaint  and  information,  and  the  pro- 
ceedings had  and  proposed  thereunder,  are  all 
in     violation   of    section  1   of  the  fourteenth 
amendment  to  the  Constitution  of  the  United 
States,  which  is  specially  invoked  herein,  to- 
gether with  all  the  rights  and  privileges  guar- 


184       THE    LAW    OF    CONSTRUCTIVE    CONTEMPT. 

antied  thcM'eiindei-.  (V2)  That  section  161G  of 
the  Revised  Statutes  for  1899  provides  :  '  Sec. 
1616.  May  Punish  Contempt.  Every  court 
of  record  shall  have  j)o\ver  to  i)unish,  as  for  a 
criminal  contemjit,  persons  guilty  of  an}'  of 
the  following  acts,  and  no  other:  First,  dis- 
orderly, contemptuous  or  insolent  behavior, 
committed  during  its  sitting,  in  immediate 
view  and  presence,  and  directly  tending  to  in- 
terrupt its  proceedings,  or  to  impair  the  re- 
spect due  to  its  authority;  second,  any  breach 
of  the  peace,  noise  or  other  disturbance, 
directly  tending  to  interrupt  its  proceedings ; 
third,  willful  disobedience  of  any  process  or  or- 
der, lawfully  issued  or  made  by  it ;  fourth,  re- 
sistance willfully  offered  by  any  person  to  the 
lawful  order  or  process  of  the  court;  fifth, 
the  contumacious  and  unlawful  refusal  of  any 
person  to  be  sworn  as  a  witness,  or  when  so 
sworn,  the  like  refusal  to  answer  any  legal 
and  proj)er  interrogatory.'  And  this  respond- 
ent states  that,  by  virtue  of  said  statute,  this 
court  is  not  authorized  to  punish  this  respond- 
ent on  account  of  any  of  the  matters  charged 
in  the  information  herein.  Wherefore  he 
asks  that  this  complaint  be  dismissed. 

The  matter  coming  on  for  hearing,  the 
defendant  appeared  in  person  and  by  counsel. 

The  Attorney-General,  in  open  court,  de- 
manded of  the  defendant  and  his  counsel  to 
know  whether  or  not  they  desired  an  oppor- 
tunity to  introduce  evidence  to  show  the  truth 
of  the  matters  charged  in  the  articles  aforesaid, 
and  announced  the  readiness  of  the  State  to 


TIIK    LAW    OF    CONSTRUCTIVE    CONTKMPT.  18-5 

proceed  at  oiiee  with  tlie  trial  thereof.  One  of 
defendant's  counsel,  Mr.  New,  stated  that  as 
the  return  denied  all  the  alleviations  of  the 
infoi'ination  not  specially  admitted,  and  de- 
mande(i  strict  proof  of  the  alle^-ations  of  the 
infoiauation,  his  position  was  that  the  burden 
of  proof  was  u|)on  the  informant  to  prove  the 
falsit}^  of  the  chai'ges,  and  not  u[)on  the  de- 
fendant to  prove  the  truth  of  the  charges.  The 
other  counsel  foi- the  defendant,  Mr.  Bi-adlev, 
stated  that,  so  far  as  he  was  concerned,  he  did 
not  believe  the  charges  were  true,  and  that  he 
did  not  desire  an  opportunity  to  introduce  any 
evidence  to  show  that  they  were  true.  There- 
upon the  hearing  was  proceeded  with  ;  the 
defendant  standing  u[)on  the  defenses  set  u[) 
in  his  I'eturn,  with  theadditional  point  that  the 
information  was  not  verified.  U[)on  final  sub- 
mission, the  coui't  adjudged  the  defendant 
guilty  of  contempt  of  court,  and  fixed  his 
punishment  at  a  fine  of  $500  and  costs,  the 
defendant  to  stand  committed  until  the  same 
was  paid.  Thereupon  the  fine  and  costs  were 
paid.  Ordinai'ily  this  would  close  the  case 
and  the  incident.  But  as  this  is  the  first  case 
of  this  charactei"  that  has  ever  arisen  in  this 
State  or  court,  it  was  stated  at  the  time  of 
the  rendition  of  the  judgment  that  a  written 
opinion  would  be  pi-epared  and  promulgated 
latei-,  in  oi-der  that  the  reasons  upon  which 
the  judgment  rested,  and  the  law  a[)i)ricable 
to  such  cases,  might  be  known  and  under- 
stood to  the  end  that  well-disposed  and  good 
citizens  might  not  innocently  offend  in  such 


180   THE  LAW  OF  CONSTRUCTIVE  CONTEMPT. 

regard,  and  that  all  others  guilty  of  like  vio- 
lations of  law  should  have  notice  of  the  con- 
sequences. 

1.  The  Contempt  Involved  in  This  Case.  — 
At  the  outset,  it  is  proper  to  analyze  the 
article  in  question,  so  as  to  clearly  understand 
the  character  and  scope  of  the  charges.  The 
article  starts  out  with  an  attack  upon  the 
Attoi"ney-General  and  the  Governor  of  the 
State,  in  connection  with  offenses  alleged  to 
have  been  committed  by  members  of  the  leg- 
islative branch  of  the  govei'ument.  Then  it 
alleges  that,  "  as  a  capsheaf  of  all  this  cor- 
ruption in  high  places,"  this  court,  "  at  the 
whipci'ack  of  the  Missouri  Pacific  Railroad, 
sold  its  soul  to  the  coi'porations,"  It  then 
refers  to  the  course,  on  former  appeal,  of  the 
case  of  Oglesby  against  the  Missouri  Pacific 
Pailroad  in  this  court,  and  says:  "Each 
election  has  seen  the  hoisting  of  a  railroad 
attorney  to  the  Supreme  Bench."  It  then 
charges  that  the  case  was  reversed  and  re- 
manded for  a  new  trial,  and  upon  such  new 
trial  the  plaintiff  again  obtained  a  verdict, 
and  an  appeal  was  again  taken  ;  that  the  rail- 
road needed  another  man  to  beat  the  case,  and 
that  the  Democratic  nominating  convention 
furnished  him,  and  that  "  the  railroad,  backed 
by  four  judges  on  the  bench,  allowed  the  case 
to  come  up  for  final  hearing;  "  and  that  the 
judgment  was  reversed,  and  the  cause  not  re- 
manded for  retrial.  The  article  then  charges 
that  "  the  victoi-y  of  the  railroad  has  been 
complete,  and  the  corruption  of  the  Supreme 


THE  LAW  OF  CONSTKUCTIVK  CONTKMI'T.    187 

Coin"t  lias  Ix'en  tlK»roiig-li.  It  has  reversed 
and  stultified  itself  in  this  ease  until  no  sane 
man  can  have  any  other  opinion  but  that  the 
judiies  who  coneurred  in  the  ojjinion  dismissing 
the  Oglesb}'  case  have  been  bought  in  the  in- 
terest of  the  railroad.  What  hoi)e  have  the 
ordinary  citizens  of  ^Missouri  for  justice  and 
equitable  laws  in  bodies  wheresuch  ojjen  venal- 
ity is  i)racticed?  And  how  long- will  they  stand 
itV  The  corpoi"ations  liave  long  owned  the 
Legislatui'e,  now  thc}'^  own  theSupremeCourt, 
and  the  citizen  who  ai)plies  to  either  for 
justice  against  the  corpoi'ation  gets  nothing." 
Thus  it  will  be  observed  that  this  scandalous 
article  makes  the  following  charges :  First, 
it  charges  the  Attoi'uey-General  and  the 
Governor  with  faithlessness  in  the  discharge 
of  their  duties  ;  second,  it  charges  the  legis- 
lative department  with  high  and  grave  mis- 
demeanoi's ;  third,  it  charges  the  Supreme 
Court  with  having  "  sold  its  soul  to  the  cor- 
porations," of  being  com})osed  of  railroad 
attorneys,  of  being  guilty  of  corruption,  of 
practicing  open  venality,  of  having  been 
"  bought  in  the  interest  of  the  railroad,"  and, 
like  the  Legislature,  of  being  "owned"  by 
the  raili'oads;  fourth,  it  charges  the  Demo- 
cratic nominating  convention  of  '902  with 
having  been  dominated  by  the  railroads,  and 
with  having  nominated  a  candidate  foi-  Su- 
preme Judge  who  would  favor  the  railroad 
in  the  Oglesby  case.  In  short,  the  article  at- 
tacks the  honesty,  integrity,  and  purity  of 
every  bi-anch  of    the  State  government,    and 


188       THE    LAW    OF    CONSTRUCTIVE    CONTEMPT. 

of  the  several  officers,  and  then  attacks  the 
Democratic  nominating  convention  of  1902. 
If  these  charges  are  trne,  the  persons  who 
are  thns  charged  shonld  be  prosecnted  and 
removed  from  office.  On  the  other  liand, 
any  one  who  makes  such  charges  should  be 
prepared  to  make  some  sort  of  a  decent 
showing  of  their  truth.  Instead  of  standing 
ready  to  prove  the  truth  of  the  charges,  the 
defendant,  when  called  into  coui-t,  neither 
asserts  the  truth  of  the  charges,  nor  does  he 
accept  the  challenge  of  the  Attorney-Gen- 
eral to  introduce  any  evidence  whatever  of 
their  truth.  On  the  contrary,  one  of  his 
counsel  takes  the  very  erroneous  position 
that  the  burden  of  proof  is  upon  the  inform- 
ant to  show  the  falsity  of  the  charges  and 
not  upon  the  defendant  to  prove  the  truth 
of  the  charges,  while  his  other  counsel  ex- 
pressly states  that  he  does  not  believe  the 
chai'ges  are  trne,  and  does  not  desire  to  in- 
troduce any  evidence  to  show  that  they  are 
true.  In  other  words,  the  defendant  has 
grossly,  indecently,  and  cruelly  vilified  and 
scandalized  every  department  of  the  govern- 
ment under  which  he  lives,  and  which  affords 
him  protection  for  his  life,  liberty,  and  prop- 
erty, and,  when  challenged  to  make  his 
words  good,  he  consummates  his  offending  by 
failing  absolutely  to  produce  one  word  of 
testimony  to  show  that  he  told  the  truth,  and, 
instead  of  making  the  "  amende  honorable," 
b}'  withdrawing  the  charges  and  apologizing 
like  a  man,  he  seeks  to  escape  punishment  by 


TlIK    I-AW    OF    CONSTRUCTIVK    CONTEMrr.        189 

clKillLM)<j;iii<^-  tlie  juiisdiction  of  tliis  court  to 
})rotc'C't  itsulf  from  iuHult  and  to  maintain  the 
respect  and  dignity  ^vith  which  the  i)eoi)le 
have  invested  it,  denies  that  tlie  facts  charged 
are  sullicient  to  constitute  a  contem[)t,  and 
raises  other  technical  and  constitutional  ques- 
tions. As  above  stated,  this  is  the  fii'st  case 
of  this  kind  that  has  come  before  this  court. 
It  is  not,  however,  the  first  time  that  highly  im- 
])roper  articles  have  been  publisiied  concerning 
this  court  and  othei"  courts  in  this  State,  but 
it  is  the  first  case  wherein  the  character  and 
heinousness  of  the  charges  has  made  it  abso- 
lutely imj)ei-ative  upon  this  court  to  take  cog- 
nizance of  them.  It  is,  by  no  means,  however, 
the  first  case  of  its  kind  that  has  arisen. 
The  books  are  full  of  cases,  both  Eng- 
lish and  American,  where  other  courts  have 
been  similarl}' scandalized,  and  have  punished 
the  vilifiers  as  for  a  contempt  of  court. 

2.  Inherent  Power  of  Courts  of  Record  to 
Punish  Contempts.  —  The  first  question  i-aised 
by  the  defendant  in  this  case  is  as  to  the 
power  and  jurisdiction  of  this  court  to  i)un- 
ish  him  summarily  for  a  criminal  contempt. 
The  [)()wer  to  punish  for  contempt  is  as  old  as 
the  law  itself,  and  has  been  exercised  so  often 
that  it  would  take  a  volume  to  refer  to  the 
cases.  From  tlie  earliest  dawn  of  civilization, 
the  power  has  been  conceded  to  exist.  It  has 
been  exercised,  or  not,  as  a  matter  of  public 
policy,  but  its  existence  has  never  been  de- 
nied. In  England  it  has  been  exercised  when 
the  contein[)t    consisted  of  scandalizing    the 


190        TIIK    LAW    OF    CONSTRUCTIVE    CONTEMPT. 

sovereign  or  his  ministers,  the  lawmaking 
power  or  the  courts.  In  the  American 
colonies  the  same  rule  obtained,  and  was  ex- 
ercised quite  frequently.  Since  the  Revolu- 
tion, and  the  adoption  of  the  Constitution  of 
the  United  States,  and  the  establishment  of 
this  government  of  the  people,  by  the  people, 
and  for  the  ))eople,  the  English  rule  has  been 
modified  so  far  as  the  executive  department 
and  the  ministers  of  state  are  concerned,  and 
in  some  decree  so  far  as  the  legislative 
department  is  concerned,  but  has  been 
almost  universall}^  preserved  so  far  as  the 
judicial  department  is  concerned.  For 
instance,  in  England  it  was  an  offense, 
called  "sedition"  to  speak  or  write  against 
the  character  and  constitution  of  the  gov- 
ernment, or  to  seek  to  change  it  by  any 
means  except  those  prescribed.  There  was 
also  an  offense  known  as  "  scandalum  magna- 
tum,"  which  consisted  of  scandalizing  the 
sovereign,  his  ministers,  members  of  Parlia- 
ment, the  courts  and  the  judges,  and  certain 
other  persons  of  high  rank.  It  is  interesting 
to  note  the  difference  in  policy  with  refer- 
ence to  the  enfoi'cement  of  the  laws  of  other 
countries  in  respect  to  sedition  and  scanda- 
lum magnatum.  The  first  case  of  which 
there  is  a  report  at  hand  "  was  that  wherein 
Emperor  Augustus  desired  to  punish  a  histo- 
rian who  passed  some  stinging  jest  on  him 
and  his  family,  but  Maecenas  advised  him  that 
the  best  policy  was  to  let  such  things  pass 
and  be  forgotten.     Other  sovereigns  took  the 


THE  LAW  OF  CONSTRUCTIVE  CONTEMI'T.    191 

same  view.  Ca\sar  said  tliat  to  retaliate  was 
only  to  eonteiid  witli  impudence  and  put  one- 
self on  the  same  level.  And  even  Tibeiius 
acted  upon  the  same  view.  The  Theodosian 
Code  also  made  this  the  law,  and  expressly 
declai'ed  that  slanderers  of  majesty  should  be 
unpunished,  for,  if  this  proceeded  from  levity, 
it  was  to  be  despised  ;  if  from  madness,  it 
was  to  be  pitied;  and,  if  from  malice,  it 
was  to  be  forgiven  ;  for  all  such  sayings  weie 
to  be  regarded  according  to  the  weight  they 
bore."  Patterson  on  Liberty  of  Pi'ess,  Speech, 
etc.,  p.  87.  But  while  such  was  the  policy 
of  these  Latin  countries,  exactl}^  the  converse 
has  long  been  the  established  law  among 
English-speaking  people.  As  early  as  the 
reign  of  Edward  I,  it  was  an  offense  to  pub- 
lish false  news  or  tales,  whereby  discord 
might  grow  between  the  King  and  his  peo- 
ple. 3  Edw.  I,  c.  34.  Construing  this  act 
LordEllenborongh,  C.  J.,  said  ;  "  If  a  person 
who  aduiits  the  wisdom  and  virtues  of  his 
majesty  laments  that  in  the  exercise  of  these 
he  has  taken  an  unfortunate  and  erroneous 
view  of  the  interests  of  his  dominions,  he 
was  not  prepared  to  say  that  this  tends  to  de- 
grade his  majesty  or  to  alienate  the  affec- 
tions of  his  subjects.  He  was  not  prepared 
to  say  this  is  libelous,  but  it  must  be  with 
perfect  decency  and  respect,  and  without  any 
imputation  of  bad  motives.  If  the  writer 
were  to  go  one  ste[)  further,  and  say  or  in- 
sinuate that  his  majesty  acts  from  any  })ai- 
tial    or   corrupt  view,  or  with  an   intention   to 


192   THE  LAW  OF  CONSTRUCTIVE  CONTEMPT. 

favor  or  ()])prc'ss  any  individual  or  class  of 
men,  then  it  must  have  been  most  libelous." 
In  England  it  is  an  offense  to  libel  ministers 
of  state.  Holt,  C.  J.,  in  Tutchin's  Case,  14 
St.  Tr.  1128,  said  that  "to  assert  that  cor- 
rupt officers  are  ap|)ointed  to  administer  af- 
fairs is  a  reflection  on  the  government,  and 
tends  to  beget  an  ill  opinion  of  the  adminis- 
tration of  the  government.  Criticisms  which 
make  no  fair  allowances  to  these  public  serv- 
ants as  being  honestly  desirous  to  do  their 
work  well,  and  imputing  corruption  or  dis- 
honesty, or  any  other  personal  vice  incom- 
patible wdth  a  high  sense  of  duty,  are  thus 
treated  as  libels."  In  1801  one  Cobbett  pub- 
lished a  letter  in  which  he  spoke  of  Lord 
Hardvvicke,  Lord  Lieutenant  of  Ireland,  and 
Lord  Redesdale,  Lord  Chancellor  of  Ireland, 
as  "  a  very  eminent  sheep-feeder  from  Cam- 
bridgeshire, assisted  by  a  very  able  and 
strong-built  chancery  pleader  from  Lincoln's 
Inn."  He  w^as  prosecuted  for  libel,  and  Lord 
EUenborough  told  the  jury  that  'Mf  a  public- 
ation be  calculated  to  alienate  the  affections 
of  the  people,  by  bringing  the  government  in- 
to disesteem,  whether  the  expedient  be  by 
ridicule  or  obloquy,  the  person  so  conducting 
himself  is  exposed  to  the  inflictions  of  the 
law.  It  is  a  crime."  Rex  v.  Cobbett,  29  St. 
Tr.  54.  In  1786  the  Moiming  Herald  charged 
Pitt,  the  Prime  Minister,  with  gambling  in 
the  funds,  and  fraudulently  availing  himself 
of  official  information  to  make  money  on  the 
stock  exchange.     He  sued  the  publisher  for 


TllK    LAW    OF    COXSTRUCTIVK    (  ONTK.Ml'T.        193 

libel,  and  Loi'd  Miui.sfiuld  told  the  jury  to  re- 
meinbei-  this  was  "  a  very  serious  question, 
in  which  all  the  i)ublic  were  concerned, 
namely,  whether  there  should  be  any  protec- 
tion to  the  I'eputation  of  honorable  men  in 
public  or  [)rivate  life.'"'  The  jury  returned  a 
verdict  for  £250.  Pattei'son  on  Liberty  of 
the  Press,  etc.,  p.  95. 

The  offense  of  scandalum  magnatum  has 
not  existed  in  this  counti'y  since  the  Revolu- 
tion, but  every  one,  of  whatever  rank  or  sta- 
tion in  life,  stands  uj)on  the  same  footing 
before  the  law,  and  is  entitled  to  the  same  pro- 
tection for  his  life,  his  liberty,  his  |)roperty, 
and  his  re{)utati()n.  In  the  eye  of  our  consti- 
tutions and  laws,  every  man  is  a  sovereign,  a 
ruler,  and  a  freeman,  and  has  equal  rights 
with  evei-y  other  man.  \Ye  have  no  rank  or 
station,  except  that  of  respectability  and  in- 
telligence, as  opposed  to  indecency  and  igno- 
rance ;  and  the  door  to  this  rank  stands  open 
to  every  man  to  freely  enter  and  abide  therein, 
if  he  is  qualified,  and  whether  he  is  qualified 
or  not  depends  upon  the  life  and  character 
and  attainments  and  conduct  of  each  j)erson 
for  himself.  Evei'y  man  may  lawfully  do 
what  he  will,  so  long  as  it  is  not  mala  in  se  or 
mala  prohibita,  or  does  not  infringe  upon  the 
equally  sacred  rights  of  others.  Every  man 
may  speak  or  write  what  he  will,  so  long  as 
he  tells  the  truth,  but  no  man  has  any  more 
right  to-day  to  bear  false  witness  against  his 
neighbor  than  he  had  in  the  days  of  Moses. 

During  the  administration  of  the  elder  Ad- 

13 


194       THE    LAW    OF    CONSTRUCTIVE    CONTEMPT. 

ams  a  sedition  law  was  enacted,  making  it  an 
offense  to  libel  the  government,  the  Congress, 
or  the  President  of  the  United  States,  and 
four  cases  were  prosecuted  under  it.  But 
its  constitutionality  was  always  disputed  by 
a  large  part  of  the  citizens,  and  its  impolicy 
was  beyond  question.  It  brought  about  the 
very  conditions  it  was  intended  to  repress, 
and  was  soon  repealed.  Cooley's  Const.  Lim. 
(6th  Ed.),  p.  526;  Odgers  on  Libel  &  Slan- 
der, p.  416.  The  only  offense  of  this  general 
character  which  is  known  to  our  law  is  at- 
tempt, "by  word,  deed,  or  writing,  to  promote 
public  disorder,  or  to  induce  riot,  rebellion, 
or  civil  war,  which  acts  are  still  considered 
seditions,  and  may,  by  overt  acts,  be  trea- 
son." Odgei's  on  Libel  and  Slander,  p.  419. 
The  Parliament  of  England  has,  at  least  since 
as  early  as  the  reign  of  Richard  IT,  claimed 
an  inherent  right  to  punish  summarily,  as  for 
a  contempt,  an}'  breach  of  its  ])rivileges,  and 
the  books  are  full  of  cases  wherein  it  exer- 
cised the  power,  as  many  as  80  cases  occur- 
ring during  the  seventeenth  century.  The 
Parliament  has  always  claimed  and  exercised 
the  right  to  be  the  sole  judge,  without  any 
interference  or  review  by  the  courts  or  other- 
wise, whether  a  contempt  against  its  privi- 
leges has  been  committed,  and  how  it  shall 
be  punished,  and  this  power  has  been  con- 
ceded to  it.  Paterson  on  Liberty  of  Press,  etc. , 
p.  105  et  seq.  ;  Odgers  on  Libel  and  Slander, 
p.  422.  So  jealous  and  tenacious  is  Pai'liament 
of  its  rights  in  this  i-egard,  that  in   1689  it 


Tin:    LAW    Ol'    CONSTRrf'TTVE    rOXTKillT.        195 

[ictiially  cited  two  judges  before  it  for  con- 
tempt, for  eiitei-ing-  n  judgment  against  tlie 
sergeant  of  the  House,  Ijased  upon  his  act  in 
executing  the  orders  of  the  House.  x\nd 
although  the  judges  insisted  that  their  act  was 
only  an  error  of  judgment,  they  were  ad- 
judged guilty  of  contempt  of  the  privileges  of 
Parliament,  and  were  eonunitted  to  prison  in 
Newgate,  where  they  remained  eight  months. 
Paterson's  Liberty  of  the  Press,  etc.,  p.  201. 
The  Congress  of  the  United  States  and 
the  Legislatures  of  the  several  States  have 
also  an  inherent  power  to  punish  for  cer- 
tain contempts,  but  this  power  is  not 
generally  admitted  to  be  as  broad  as  that 
of  the  Parliament  of  England.  The  courts 
of  England  have  uniformly,  from  the  begin- 
ning, exercised  the  right  to  punish  for  con- 
tempt, and  the  courts  of  America  have  always 
exercised  a  like  power.  Blackstone,  vol.  4, 
p.  285,  in  tieating  of  such  contempts,  and 
the  power  of  the  court  to  punish  therefor, 
says:  "Some  of  these  contempts  may  arise 
in  the  face  of  the  court,  as  by  rude  and  con- 
tumelious behavior ;  by  obstinacy,  pervei'se- 
ness,  01' prevarication  ;  by  breach  of  the  peace, 
or  any  willful  distui'bance  whatever  ;  others, 
in  the  absence  of  the  pai'ty,  as  by  disobeying 
or  tieating  with  disrespect  the  King's  writ,  or 
the  rules  or  process  of  the  court;  b}^  pervert- 
ing such  writ  or  process  to  the  pui-poses  of 
pi'ivate  malice,  extortion,  or  injustice;  hf/ 
speaking  or  writing  contempt aoushj  of  the 
court   or    judges,    acting   in    their   judicial 


19()   THE  LAW  OF  CONSTRUCTIVE  CONTEMPT. 

capacity  "  (the  italics  are  superadded  for  the 
sake  of  emphasis)  ;  "  by  ])rinting  false  ac- 
counts, or  even  true  ones  without  proper  per- 
mission, of  causes  then  depending  in  judg- 
ment; and  by  anything,  in  short,  that 
demonstrates  a  gross  want  of  that  regard  and 
respect  which,  when  once  courts  of  justice 
are  deprived  of,  their  authority,  so  necessai-y 
for  the  good  order  of  the  kingdom,  is  entirely 
lost  among  the  people." 

Speaking  to  this  subject,  Patei-son  on  Lib- 
erty of  the  Press,  etc.,  p.  121,  aptly  says: 
"  Courts  of  law  must,  therefore,  as  in  the 
case  of  Parliament,  be  credited  with  sufticient 
power  to  vindicate  and  protect  their  pi'oced- 
ure  against  attacks,  for,  as  courts  are  the 
appointed  means  of  adjudicating  on  all  dis- 
putes, and  foi-  discovering  all  sufficient 
materials  to  that  end,  their  labors  would  be 
often  futile,  if  irresponsible  volunteers  in- 
truded crude  opinions  and  speculations, 
founded,  as  they  must  usually  be,  on  defective 
data.  The  first  requisite  of  a  court  of  justice 
is  that  its  machinery  be  left  undisturbed,  and 
this  cannot  be  effected  unless  comments  be  all 
but  excluded  till  the  court  has  discharged  its 
function.  The  same  power  to  commit  sum- 
marily for  contempt  all  persons  who  intrude 
into  the  judicial  function,  and  profess  to  have 
better  and  superior  means  of  knowledge,  or 
who  suggest  partial  or  corrupt  conihict,  is 
thus  deemed  inherent  in  all  courts  of  record, 
though  the  occasion  and  extent  of  this  sum- 
mary jurisdiction  have  given  rise  to  nice  dis- 


TIIK     LAW    OF    CONSTIUC    TIN  K    CONTK.M  1' T.         I'.'T 

tiiictions.  It  is  saifl  to  be  a  necessaiy  incident 
to  every  coui't  of  jnstice,  whether  of  lecoid 
or  not,  to  tine  and  imprison  for  a  contempt 
acted  in  the  face  of  it.  This  exercise  of 
power  is  as  ancient  as  any  other  part  of  the 
common  hxvv.  If  the  course  of  justice  is  ob- 
structed, that  ol)struction  must  be  violently 
removed.  AVhen  men's  allegiance  to  the  laws 
is  fundamentally  shaken,  this  is  a  dangerous 
obstruction.  That  the  judges  should  be  cred- 
ited with  impartiality  is  absolutely  necessary. 
Therefore  to  libel  or  slander  the  adminis- 
tration of  tile  law  by  imputing  misconduct 
to  the  judge  or  jury  is  an  indictable  of- 
fense. Judges  are  also  protected  in  other 
ways.  To  kill  a  judge  in  the  performance  of 
his  duties  is  no  less  than  high  treason.  Coke 
says  that  to  draw  a  weapon  at  a  judge  sit- 
ting in  court  was  a  great  mis|)rision,  for 
which  the  right  hand  was  cut  off  and  the 
goods  were  forfeited.  To  utter  threats  or 
reproaches  to  a  judge  sitting  in  court  is  al- 
ways an  indictable  misdemeanor."  Rapalje 
on  Contempts  starts  his  woi"k,  in  section  1, 
with  these  statements:  "It  is  conclusively 
settled  by  a  long  line  of  decisions  that  at 
common  law  all  courts  of  record  have  an 
inJK'rent  power  to  punish  contempts  com- 
mitted in  facie  curia' ;  such  power  being  es- 
siMitial  to  the  very  existence  of  a  court  as 
such,  and  granted  as  a  necessary  incident  in 
establishing  a  tribunal  as  a  court.  *  *  * 
Each  superior  coui't  being  the  judge  of  its 
own   [)Ower    to  punish    contemnei's,   no  otlicr 


198   THE  LAW  OF  CONSTRUCTIVE  CONTEMPT. 

court  can  question  the  existence  of  that  power, 
and  the  facts  constituting  the  contempt 
need  not  be  set  out  in  the  record.  This  in- 
herent and  necessary  power  can  be  exercised 
by  a  superior  coui't  independently  of  statu- 
tory authority,  and  such  court  may  go  be- 
yond the  powers  given  by  statute,  in  order 
to  preserve  and  enforce  its  constitutional 
powers,  when  acts  in  contempt  invade  them. 
Indeed,  the  conferment  of  the  power  by  stat- 
ute upon  a  superior  court  of  record  is  deemed 
no  more  than  declaratory  of  the  common 
law."  In  the  note  to  the  text  the  author 
has  collated  decisions  establishing  this 
to  be  the  law^  in  Alabama,  Arkansas,  Cali- 
fornia, Connecticut,  Florida,  Indiana,  Illi- 
nois, Kansas,  Kentucky,  MasKachusetts, 
Maine,  Mississippi,  IS'ew  Hampshire,  New 
Jersey,  New  York,  North  Carolina,  Pennsyl- 
vania, South  Carolina,  Tennessee,  AVest  Vir- 
ginia, and  in  the  United  States  courts,  as 
well  as  in  England.  In  7  Am.  &  Eng.  Enc. 
of  Law,  p.  30,  the  rule  of  law  is  thus  stated  : 
"  The  light  of  every  superior  court  of  record 
to  punish  for  contempt  of  its  authority  or 
process  is  inherent  from  the  very  nature  of 
its  organization,  and  essential  to  its  existence 
and  protection  and  to  the  due  administration 
of  justice."  And  in  the  note  to  the  text  the 
writer  sets  out  a  multitude  of  cases  from  the 
States  and  jurisdictions  i-eferred  to  by  Ra- 
palje,  and  shows  that  such  is  also  the  law 
in  Colorado,  Georgia,  Michigan,  Nebraska, 
Ohio,    Oklahoma,   South  Dakota,   Vermont, 


TIIK    LAW    OF    CONSTKICTIVK    COXTEMl'T.        199 

and  Virj^inia.  fJiidgH-  (Jocjley,  in  his  W(jik  on 
Constitutional  Limitations  (Gtli  Ed.),  p.  389, 
note  2,  says:  "Cases  of  contempt  were  never 
triable  by  jury,  and  the  object  of  the  power 
would  be  defeated  in  many  cases  if  they 
were.  The  power  to  punish  contempts  sum- 
maiily  is  incident  to  courts  of  record."  In 
support  of  the  law  as  thus  stated  the  learned 
author  cites  cases  from  England,  the  United 
States  courts,  Maine,  Xew  York,  Tennessee, 
Illinois,  Arkansas,  Kentucky,  Xorth  Caro- 
lina, ]\[ississippi,  Xew  Hampshire,  Connecti- 
cut, Indiana,  and  Rhode  Island.  Best,  J.,  in 
Rexv.  Davison,  4  Bai'u  &  Aid.  loc.  cit.  340, 
decided  in  1821,  said:  "From  the  earliest 
period  of  our  histoi-y,  this  authority  has  been 
exercised.  The  Year  l^ooks  record  instances 
of  such  commitments."  All  the  judges  in 
Miller  v.  Knox,  4  Bing.  N.  C.  574,  said  it  is 
'•  an  acknowledged  principle  that  the  power 
of  summarily  punishing  for  contempt  has 
been  inherent  in  all  courts  of  recoi'd  from 
time  immemorial."  In  fact,  so  well  settled  is 
the  law  in  England  in  this  regard  that  it  is 
said  in  3  Enc.  of  the  Laws  of  England,  p. 
313:  ''  A  court  of  justice,  without  power  to 
vindicate  its  own  dignity,  to  enforce  obedi- 
ence to  its  mandates,  to  protect  its  officers, 
oi"  to  shield  those  who  are  intrusted  to  its 
caie,  would  be  an  anomaly  which  could  not 
be  permitted  to  exist  in  any  civilized  com- 
munity. ''■  *  *  Without  such  protection, 
courts  of  justice  would  soon  lose  their  hold 
upon  public  respect,  and  the  maintenance  of 


200   THE  LAW  OF  CONSTRUCTIVE  CONTEMPT. 

law  and  order  would  be  rendcM'ed  impossi- 
ble." Blackstone  declai-es  that  "  laws  with- 
out a  competent  authoi'ity  to  secure  their 
administration  from  disobedience  and  con- 
tempt would  be  vain  and  nugatory.  A  power, 
therefore,  in  the  supreme  courts  of  justice,  to 
suppress  such  contempts  by  an  immediate 
attachment  of  the  offendei-,  results  from  the 
first  principles  of  judicial  establisliments, 
and  must  be  an  inseparable  attendant  upon 
every  superior  tribunal.  Accordingly  we 
find  it  actually  exercised  as  early  as  the  an- 
nals of  our  law  extend."  4  Black.  Com.  286. 
And  the  law  is  as  firmly  settled  in  America 
as  it  is  in  England.  In  Ex  parte  Robinson, 
19  Wall.  505,  22  L.  Ed.  205,  the  Supreme 
Court  of  the  United  States,  speaking  through 
Mr.  Justice  Field,  said :  "  The  power  to  pun- 
ish for  contempts  is  inherent  in  all  courts. 
Its  existence  is  essential  to  the  preservation 
of  order  in  judicial  proceedings,  and  to  the 
enforcement  of  the  judgments,  orders,  and 
writs  of  coui'ts,  and  consequentl}'^  to  the  due 
administration  of  justice.  The  moment  the 
courts  of  the  United  States  were  called  into 
existence  and  invested  with  jurisdiction  over 
any  subject,  they  became  possessed  of  this 
power."  In  Cartwright's  Case,  114  Mass. 
238,  Gray,  C.  J.,  afterwards  Associate  Justice 
of  the  Supreme  Court  of  the  United  States, 
said  :  "  The  sumniar\^  power  to  commit  and 
punish  for  contempts  tending  to  obstruct  or 
degrade  the  administration  of  justice  is  in- 
herent in  courts  of  chancery  and  other  supe- 


TlIK    LAW    ol-    (  ONSTKUCTIVK    CONTK.Ml'T.        201 

rior    courts,  as    essential    to     tlie    cxfciitioii 
and  to  the     maiiitciumce,  of  tlieir  authoi-ity, 
and   is  pait  of    the   law    of    the    hmd,    witliin 
the   nu'-.min*;-    of    Ma^-na  Charta    and    of  the 
twelfth  aitiele  of  our  Declaration  of  Kif;hts." 
In  AVatson  v.  Williams,  36  Miss,  ^-il,  Harris, 
J.,   said:   "The  power  to  fine  and    imprison 
foi-    contempt,   from     the    earliest  histoi'V  of 
jurisprudence,   has  been  regarded  as  a  neces- 
sary incident  and  attribute  of  a  court,  without 
which    it    could    no  more  exist  than   without 
a     judge.       It     is    a     power    inherent    in   all 
coili'ts  of  record,  and    co-existing  with  them, 
by  the  wise  provisions  of  the    common    law. 
A  court  without  the  power  to  effectually  pro- 
tect itself  against  the  assaults  of  the  lawless, 
or  to  enforce   its  orders,   ju(Jgments,   or   de- 
crees   against     recusant    i)ersons    befoi-e     it, 
would  be  a  disgrace   to  the  legislation,  and  a 
stigma  upon  tlie  age  that  invented  it."      In 
State  V.  Frew,  24  W.  Va.  416,  49  Am.  Kep. 
257,  Snyder,  J.,  said  :   "  It  may  be  stated  as 
a   proposition    of    law    unquestioned  and  un- 
questionable   that    by    the    common    law     of 
England,   as  well  as  by  the  uniform  decisions 
of  the   courts  of  tins  country,  courts  have  the 
inherent    i)owe!'    to    i)unish    contemi)ts    in    a 
summai-y    manner,  and   that  this  power  is  an 
essential  element  and  i)art  of  the   court  itself, 
which  cannot  be  taken  away   without  impair- 
ing the  usefulness  of  the  c^oui't,   because  it  is 
a    power    necessar}'    to    the    exercise    of    all 
others."     To  the  like  effect  are  the  decisions 
in   the  other  States  of  the  Union  above  refer- 
red to. 


202       THE    LAW    OF    CONSTRUCTIVE    CONTEMPT, 

If  eaeli  court  did  not  possess  tlie  power  to 
punish  contempts  committed  against  itself, 
the  jury,  and,  its  officers,  summarily,  it 
would  be  easy  foi*  a  contemner  to  escape 
punishment  entirely.  For  if  the  matter  was 
sent  to  another  court,  or  left  to  be  tried  by 
a  jury,  the  contemner  could  so  insult  and 
abuse  such  other  court  or  the  jury  as  to  ren- 
der it  impossible  for  them,  also,  to  try  him, 
also,  and,  by  thus  renewing  his  offense  to 
every  court  he  was  called  before,  make  it  im- 
possible to  punish  him  at  all.  It  is  manifest 
that  if  the  jury  is  insulted  and  treated  with 
contempt,  the  court  must  protect  them,  for 
they  can  render  no  judgment  and  are  power- 
less to  protect  themselves.  It  would  be  par- 
adoxical to  say  the  court  alone  can  punish  a 
contempt  of  the  jury,  but  had  no  powder  to 
pi'otect  itself  from  contempt.  Without  further 
exemplification,  therefore,  the  law  must  be 
regarded  as  settled  that  this  court  has  the 
inhei-ent  power  and  jurisdiction  to  punish 
contempts  summarily. 

3.  What  Contempts  may  be  Punished  Sum- 
marily.—  The  next  proposition  in  this  case  is, 
what  character  of  contempts  this  court  has 
the  inherent  power  to  punish  summarily.  Con- 
tempts are  classified  as  civil  or  criminal,  and 
as  direct  or  constructive.  Civil  contempts  are 
defined  to  be  such  as  a  private  person  is 
affected  by,  as,  for  instance,  where  a  party 
refuses  to  obey  a  judgment  or  order  of  couit 
which  will  benefit  such  private  person.  In 
such  instance  the  case  is  not  punitive,  but  ex- 


Tin:     LAW    OF    CONSTia  <  TIVE    CONTEMPT.        203 

ecutivc,  and  tlic  i)iinisliincnt  is  to  coiiiinit  the 
offendei'  until  he  com[)li('s  witii  the  order. 
(/I'iminal  contempts  are  all  acts  committed 
against  the  majesty  of  the  law,  ov  against  the 
court  as  an  agency  of  government,  and  in 
which,  theiH'fore,  the  state  and  the  whole  peo- 
ple are  concerned.  In  such  instance  the  pro- 
ceeding is  i)unitive,  and  the  punishment  oper- 
ates in  tei-rorum,  and  b}^  that  means  has  a 
tendency  to  prevent  the  repetition  of  the  of- 
fense. Rapalje  on  Contempts,  §21,  adopting 
the  definition  of  Beatty,  J.,  in  Philli|)S  v. 
Welch,  11  Nev.  187.  See  also  7  Am.  &  Eng. 
Enc.  Law  (2d  Ed.),  p.  28.  Direct  contempts 
are  generally  those  which  ai-e  committed  in  the 
pi'esence  of  the  court,  while  in  session,  or  so 
near  as  to  inten-upt  its  proceedings,  hut  also 
include  any  imj)r(>per  conduct  tending  to 
defeat  oi-  imi)airthe  administration  of  justice, 
while  constructive  contempts  arise  from  mat- 
tei's  not  transpiring  in  coui't,  and  which  tend 
to  degrade  or  make  impotent  the  authority  of 
the  court,  oi*  in  some  mannei'  to  impede  or 
embarrass  the  administration  of  justice.  The 
powei'  to  punish  is  the  same  in  both  cases. 
The  difference  is  only  one  of  procedure.  In 
cases  of  dii-ect  contemi)ts  the  court  acts  s[)on- 
taneously,  ex  mero  motu,  and  commits  the 
offender  summarily.  In  cases  of  constructive 
contempts  the  court,  u[)on  infoi-mation  fur- 
nished by  any  citizen,  and  verified  by  atiidavit, 
or  exhibited  by  the  Attorney-General  ex  officio, 
which  is  supported  b}'  his  official  oath,  and 
therefore  needs  no  other  verification,  or  upon 


204       THE    LAAV    OF    CONSTRUCTIVE    CONTEMPT. 

its  own  information  or  motion,  issnes  a  cita- 
tion to  the  offender  to  show  cause  why  he 
should  not  be  punished  for  contempt.  4 
Bhick.  Com.  286-7  ;  Odgens  on  Libel  &  Shm- 
der,  [)p.  483-4  ;  Paterson  on  Liberty  of  Press, 
etc.,  p.  99.  Lord  Chancellor  Hardwicke,  in 
the  Ccise  against  the  printer  of  the  St.  James 
Emnhuj  Post,  2  Atkyns'  Rep.  loc.  cit.  471, 
defines  contempt  of  court  as  follows:  "There 
are  three  different  sorts  of  contempt.  One 
kind  of  contempt  is  scandalizing  the  court  it- 
self. There  may  likewise  be  a  contempt  of  this 
court  in  abusing  parties  who  are  concerned 
in  cases  here.  There  may  be  also  a  contempt 
of  this  court  in  pi'ejudicing  mankind  against 
persons  before  the  cause  is  heard .  There  can  • 
not  be  anything  of  greater  consequence  than 
to  keep  the  streams  of  justice  clear  and  pure, 
that  parties  may  proceed  with  safety  both  to 
themselves  and  their  characters."  It  will  be 
observed  that  the  first  kind  of  contempt  spoken 
of,  to  wit,  scandalizing  the  court  itself,  is  a 
matter  ^vherein  the  State,  the  people,  and  the 
com  tare  vitally  interested.  It  is  therefore 
a  public  matter,  and  hence  is  a  ci'iminal  con- 
tempt. The  other  two  kinds  of  contempt 
spoken  of  are  such  as  directly  affect  a  party 
litigant,  and  at  the  same  time  affect  the  public 
generally  only  in  so  far  as  it  is  of  importance 
"  to  keep  the  streams  of  justice  clear  and 
l)ure."  Blackstone  also  makes  the  same  dis- 
tinction, and  defines  contempts,  i)iter  alia,  to 
consist  in  "speaking  or  writing  contemptu- 
ously of  the  court  or  judges,  acting  in  their 


TIIK    LAW    OF    C'ONBTKLCTIVK    CONTK.M  I'T.        20') 

official  c.jpaeity."  2  ]51afk.  Com.,  p.  285. 
This  distiiic'tioii  has  been  overlooked  in  some 
of  the  adjudicated  cases,  and  hence  the  ei'i'or 
they  have  fallen  into  of  saying-  that  the  con- 
tempt mnst  relate  to  a  canse  that  is  still  penrl- 
ing-,  and,  if  the  canse  is  disposed  of,  that  will 
be  no  contempt  which  wonld  have  been  a  con- 
tem])tif  it  had  occnrred  while  the  canse  was 
pending-.  The  theoi-y  of  snch  cases  is  that  the 
act  had  a  tendenc}^  to  injnrionsly  affect  the 
rights  of  a  party  litigant  in  a  pending  litiga- 
tion, or  had  a  tendency  to  embari'ass,  althongh 
it  might  not  actnally  inflnence,  the  conrt  in  the 
determination  of  a  pending  canse.  It  mnst 
be  obvions  to  the  discriminating  mind  that 
snch  cases  fall  pi'operly  nnder  tlie  second 
or  thii'd  classes  pointed  ont  by  Lord  Hard- 
wicke,  supra.,  bnt  that  they  do  not  cover  the 
whole  field,  for  there  is  still  the  first  kind  of  a 
contempt,  to  wit,  scandalizing  the  conrt  itself, 
in  which  the  pnblic  is  [)rimai'ily  interested, 
and  as  to  which  the  injnry  is  jnst  as  great 
whether  it  referred  to  a  particnlar  pending- 
case,  or  onl}'  to  the  conrt  as  an  instrnmentality 
of  government.  This  is  illnstrated  by  the  ad- 
jndicated  cases.  In  the  case  of  In  re  Charl- 
ton, 2  INIylne  &  Craig,  31(3,  decided  in  1836, 
in  ISIacgill's  Case,  2  Fowl,  ex  pi-.  -lOi,  and  in 
Ke  Wallace,  L.  R.  1  P.  C.  283,  6-.  c.  1  Privy 
App.  283,  it  was  held  to  be  a  direct  contempt 
of  court  to  send  libelous,  scandalous,  or  threat- 
ening letters  to  a  court  or  a  judge.  Charlton's 
Case,  supra,  is  one  of  the  most  celebrated  of 
its  kind.     Lord  Cottenham,  Lord  Chancellor, 


20(3         THE    LAW    OF    CONSTKUCTIVE    CONTEMPT. 

said  :  "  Tt  is  a  contempt  of  the  hig-hest  orrler  ; 
and,  although  such  a  foolisii  attempt  as  this 
cannot  be  supposed  to  have  any  effect,  it  is 
obvious  that,  if  such  cases  were  not  ])unished, 
the  most  serious  consequences  might  follow. 
If  I  consulted  my  own  personal  feelings  upon 
the  subject,  I  should  pass  by  these  letters  as 
a  foolish  attempt  at  undue  influence;  but,  if 
I  were  to  adopt  that  course,  I  should  consider 
myself  guilt}^  of  a  very  great  dereliction  of 
my  high  duty."  Charlton's  Case,  2  Mylne 
&  Craig,  loc.  cit.  342. 

The  limits  of  this  opinion  preclude  an}^  ex- 
tensive review  of  the  cases  wherein  attorneys, 
citizens,  and  newspaper  editors  have  been  pun- 
ished summarily,  as  for  a  criminal  contempt, 
for  scandalizing  the  court  or  a  judge.  The 
following  are  only  a  few  of  such  cases: 
Wraynham  was  convicted  of  saying  of  Lord 
Bacon  that  he  had  done  unjustly  and  was 
worse  than  a  murderer.  2  St.  Tr.  1071.  For 
saying  to  Judge  Hutton,  "  I  accuse  you  of 
high  treason,"  Harrison  was  fined  ^5,000  and 
sent  to  prison,  and  in  addition  the  judge  re- 
covered .^10,000  damages.  Rex  v.  Harrison, 
3  St.  Tr.  1375.  Lord  George  Gordon  was  con- 
victed and  punished  for  publishing  a  libel  on 
the  judges,  in  which  he  said  :  "  How  long  shall 
these  whited  walls  of  counsel  command  us  to 
be  hanged  contrary  to  law?  They  make  long 
charges  to  the  juries,  with  a  show  of  justice 
and  religion.  They  shed  our  innocent  blood 
for  expiable  trespasses."  In  Reg.  v.  Skip- 
worth  and  l)e  Castro,  12  Cox,  Crim.  Cases, 


THK    LAW    OF    CONSTRUCTIVE    CONTEMPT.         207 

371,  Hccidt'd  ill  1873,  De  Castro  luid  been  the 
claimant  of  the  Tichbourne  entates,  had  been 
nonsuited,  and  was  committed  for  trial  n|M.ii 
a  charg'c  of  perjury.  He  and  Skipvvorth  lield 
meetings  in  vaiious  parts  of  the  country  to 
excite  sympathy  for  his  cause  and  to  collect 
funds  foi'his  defense.  At  a  meetingin  Bi'ight- 
on,  Skipworth  presided,  and  in  his  s[)eech  he 
impugned  the  honesty  and  impartiality  of 
Lord  Chief  Justice  Cockburn.  the  judge  who 
was  to  preside  at  the  trial  of  his  fi-iend,  Dc 
Castro,  for  perjur3^  Some  one  hissed,  and 
he  replied,  "  Yes,  sir  ;  you  may  hiss,  but  I  hiss 
at  the  Lord  Chief  Justice."  Ue  Castro  also 
spoke  and  charged  the  Lord  Chief  Justice 
with  having  denounced  him  as  a  rank  im- 
postor, and  therefore  of  being  too  pi-ejudiced 
to  try  his  case.  They  were  cited  for  con- 
tempt, and  each  fined  ioOOand  sent  to  i)rison 
forthree  months.  In  Rex  v.  Almon,  AVilmot's 
Notes  of  Opinions  &  Judgts.,  p.  233,  s.  c.  8  St. 
Tr.  53.  it  was  held  to  be  a  contt'uipt  of  court, 
and  a  libel,  punishable  by  attachment,  to  pub- 
lish a  pamphlet  assei'ting  that  judges  have  no 
l)Ower  to  issue  an  attachment  for  libels  upon 
themselves,  and  denying  that  retlections  upon 
individual  judges  are  contem|)ts  of  court  at 
all.  In  Ex  parte  Turner,  3  Mont.,  D.  &  De 
G.  523,  a  solicitor  for  the  defeated  party,  after 
the  case  was  over,  published  a  i)amj)hlet  in 
which  he  pi'onounced  the  judgment  ''  an  elab- 
orate production,  wholly  beside  the  merits  of 
the  case,"  and  employed  other  llippant  and 
coutunuicious     observations.      He     was     held 


208         TIIIO    LAW    OF    CONSTRUCTIVE    CONTEMPT. 

guilty  of  contempt.  Other  cases  which  hold 
the  same  doctrine  will  be  referred  to  herein- 
after, in  connection  with  the  right  of  trial  by 
jury  in  contempt  cases,  and  the  liberty  of  the 
press,  because  they  also  beai*  upon  those 
questions. 

These  considerations  result  in  holdincx  that 
this  court  has  jurisdiction  to  punish  sum- 
marily civil  as  well  as  criminal  contempts, 
and  that  this  power  is  the  same  whether  the 
contempt  be  dii'ect  or  constructive,  there  be- 
ing only  a  difference  of  procedure  in  the  two 
cases.  The  contempt  in  this  case  is  both 
criminal  and  civil.  It  is  ci'iminal,  because 
it  scandalizes  the  court  itself,  and  therefore 
it  is  a  matter  of  public  concern  ;  and  it  is 
civil,  because  it  abuses  parties  to  a  cause 
that  is  still  pending  in  this  court,  and  be- 
cause it  seeks  to  ))rejudice  mankind  against 
parties  to  such  pending  litigation.  It  is  also 
a  libel  upon  a  majority  of  the  individuals 
composing  this  court,  for  which  such  indi- 
viduals have  a  private  right  of  action.  Such 
judges,  as  individuals,  may  choose  to  treat 
the  article  with  contempt  as  Lord  Chancellor 
Cottenham  did  in  Charlton's  Case,  2  Mylne 
&  Craig,  342,  and  as  the  judges  of  the  Colo- 
rado court  did  in  Cooper  v.  People,  22  Pac. 
loc.  cit.  800.  But  because,  as  the  Supreme 
Court  of  Colorado  said  in  the  Cooper  Case, 
supiri,  "  they  are  the  people's  courts,  and 
contemptuous  conduct  towards  the  judges  in 
the  discharge  of  their  official  duties,  tending 
to   defeat  the  due  administration  of  justice. 


THE  LAW  OF  CONSTKUCTl VK  CONTKMIT.    209 

is  iiioiv  than  an  offense  a,n-ainst  the  person 
of  the  judges — it  is  an  offense  against  the 
people's  court,  the  dignity  of  which  the  judge 
should  protect,  however  willing  he  may  be  to 
forego  the  private  injui-y  " —  and  because,  as 
Lord  Chancellor  Cottenham  said  in  Charlton's 
Case,  supra,  "  it  is  obvious  that,  if  such 
cases  were  not  punished,  the  most  serious 
consequences  might  follow,"  and  because,  if 
the  contemner  was  allowed  to  escai)e  punish- 
ment, the  people  would  have  just  cause  to 
complain  of  the  judges  of  this  court  for  not 
enforcing  proper  respect  for  this  instrument 
established  by  the  people  for  the  adminis- 
tration of  justice,  this  court  felt  constrained 
to  take  notice  of  the  contemi)t  in  this  case. 

The  ill-disguised  effort  of  the  contemner  to 
make  a  political  issue  of  the  matter  is  not  a 
proper  subject  for  the  court  to  deal  with. 
The  law-abiding,  intelligent  and  patriotic 
people  of  this  State  will  effectually  settle  that 
matter,  if  they  are  ever  given  an  opportunity 
to  deal  with  it. 

4.  Power  of  the  Legislature  to  Abridge  the 
Inherent  Power  of  the  Court  to  Punish  Con- 
tempt.—  The  defendant  further  invokes  sec- 
tion IGIO,  Rev.  St.  1899,  and  claims  that  un- 
der this  section  this  court  has  no  power  to 
])unish  this  contempt,  because  it  does  not 
fall  under  any  of  the  offenses  which  courts 
are  authorized  by  that  section  to  punish  as 
contempts.  The  section  relied  on  is  as  fol- 
lows :  "Sec.  161G.  May  Punish  Contempt. 
Every    court  of  record  shall    have  [)ower  to 

14 


210        THK    LAW    OF    CONSTRUCTIVK    CONTEMPT. 

punish,  as  foi'  a  criminal  contempt,  j^ereons 
guilty  of  the  following  acts,  and  no  other: 
First,  disorderly,  contemptuous  oi-  insolent 
behavior,  committed  during  the  sitting,  in 
immediate  vicAv  and  presence,  and  directly 
tending  to  interrupt  its  proceedings,  or  to 
impair  the  respect  due  to  its  authority  ;  sec- 
ond, any  breach  of  the  peace,  noise  or  other 
disturbance,  directly  tending  to  interrupt  its 
proceedings;  third,  willful  disobedience  of 
any  process  or  order,  lawfully  issued  or 
made  by  it ;  fourth,  resistance  willfully  offered 
by  any  person  to  the  lawful  order  or  pro- 
cess of  the  court;  fifth,  the  contumacious 
and  unlawful  refusal  of  any  person  to  be 
sworn  as  a  witness,  or,  when  so  swoi-n,  the 
like  refusal  to  answer  any  legal  or  proper 
interrogatory."  If  the  Legislature  had  power 
to  abridge  or  impair  the  power  of  this  court 
to  punish  for  contempts,  then  the  defendant 
in  this  case  could  not  be  held  liable.  But  if 
the  Legislature  had  no  such  power,  then  the 
section  of  the  statutes  quoted  is  unconstitu- 
tional and  not  binding  upon  the  court.  It 
has  already  been  pointed  out,  in  paragrai)h  2 
of  this  opinion,  that  the  power  of  this  court 
to  punish  contempts  is  inherent,  and  that 
statutes  which  attempt  to  confer  such  power 
have  always  been  treated  as  conferring  no 
new  power,  but  as  simply  declaratory  of  the 
common-law  power  that  alread}^  belonged  to 
every  court  of  record.  The  law  is  well 
settled,  both  in  England  and  Amei'ica,  that 
the  Legislatui'e   has  no  power  to  take  away, 


Tin;    LAW    OF    CONSTKUCTIVK    CONTEMPT.       211 

abfi(J*4-e,  impair,  liinit,  or  rut^ulate  the  power 
of  courts  oi"  recoi'd  to  punish  for  contempts. 
Kapulje  on  Contcuipts,  §  11 ;  7  Am.  &  Eng. 
Ene.  of  Law  (2d  Ed.),  p.  33;  Arnold  v. 
Commonwealth,  80  Ky.  300,  U  Am.  Kep. 
480;  Middlebrook  v.    State,  43    Conn.   257, 

21  Am.  Rep.  650;  State  v.  Morrill,  16  Ark. 
384;  People  v.  AVilson,  64  111.  195,  16  Am. 
Rep.  528;  Ex  parte  Robinson,  19  AVall.  505, 

22  L.  Ed.  205;  Worland  v.  State,  82  Ind. 
49;  Clieadle  v.  State,  110  Ind.  301,  11  N.  E. 
426,  59  Am.  Rep.  199;  Holman  v.  State, 
105  Ind.  513,  5  N.  E.  556;  Matter  of 
Shortridge,  99  Cal.  526,  34  Pac.  227,  21  L. 
R.  A.  755,  37  Am.  St.  Rep.  78;  People  v. 
Stapleton,  18  Colo.  568,  33  Pac.  167,  23  L. 
R.  A.  787  ;  In  reChadwick(Mich.),  67  X.  W. 
1071 ;  llawes  v.  State,  46  Xeb.  150,  64  l>f. 
W.  699;  Hale  v.  State,  55  Ohio  St.  210,  45 
ISr.  E.  199,  36  L.  R.  A.  254,  60  Am.  St.  Rep. 
691.  In  Wyatt  v.  People,  17  Colo.  261,  28 
Pac.  964,  the  court  said  :  "  Though  the  Leg- 
islature cannot  take  away  fi'oni  the  courts 
created  by  the  Constitution  the  power  to  pun- 
ish contempts,  reasonable  regulations  by  that 
body  toucliing  the  exercise  of  this  power 
will  be  regarded."  But  this,  it  must  be  ob- 
sei-ved,  leaves  it  to  the  courts  to  decide 
whether  or  not  the  regulations  that  may  be 
prescribed  are  reasonable,  and  also  [)roceeds 
npon  lines  of  comity  between  the  courts  and 
the  Legislature,  and  not  upon  any  recogni- 
tion of  the  absolute  right  of  the  Legislature 
to    enact  such  regulations.       In    addition   to 


212       TlIK    LAW    or    CONSTKUCTIVE    CONTEMPT. 

this,  it  is  now  well-settled  law  in  this  State, 
as  well  as  in  other  States,  that  the  courts 
have  nothing  to  do  with  the  policy  or  i-ea- 
sonableness  of  a  law,  those  being  legislative 
and  not  judicial  questions.  So  that,  if  it  be 
conceded  that  the  Legislature  had  any  power 
to  regulate  the  exercise  of  the  inherent  power 
of  the  court  to  punish  contempts,  the  court 
could  not  refuse  to  obey  the  law  because  it 
deemed  the  regulations  uin-easonable.  How- 
ever, it  is  a  contradiction  of  terms  to  say 
the  power  to  punish  is  inherent,  but  that  the 
Legislature  may  regulates  the  exercise.  As 
the  Supreme  Court  of  the  United  States  said 
in  Gibbons  v.  Ogden,  9  Wheat.  1,  6  L.  Ed. 
23,  the  power  to  regulate  includes  the  power 
to  say  in  what  cases  the  right  shall  be  exer- 
cised. It  is  worthy  of  obsei'vation  that  in 
only  the  States  of  Georgia  and  Louisiana  is 
power  given  by  the  Constitution  of  the  State 
to  the  Legislature  to  hmit  the  power  of  the 
court  to  punish  for  contempt.  In  all  the 
other  States  the  better  opinion  is  that,  where 
the  court  is  a  creature  of  the  constitution,  the 
inherent  power  to  punish  centempt  cannot  be 
shorn,  abridged,  limited,  or  regulated.  This 
is  the  onl}'  logical  view  to  take,  because  by 
Const,  art.  3,  the  powers  of  government  are 
distributed  between  the  legislative,  execu- 
tive, and  judicial  departments,  and  it  is  fur- 
ther expressly  provided  that  "  no  person,  or 
collection  of  persons,  charged  with  the  exer- 
cise of  powers  properly  belonging  to  one  of 
these  departments,  shall  exercise  any  power 


TIIK    LAW    OF    C'ONSTRUCTIVK    CONTEMPT.        213 

pi'opei'ly   lx'l()n<^ing'    to  eitlier    of  the  others, 
except  "^in   the   instances   in    this   Constitution 
expressly    <lirecte<l   or   |)cnuitte(l."      And   no- 
where in   the   (Jonstitution   is  the  Le,o-ishitnre 
given  any  power  to   meddle  with  the  inhci'ent 
powers  of  the  courts.      It  was  upon  the  faith 
of  this  i)i'ovision  of  the  Constitution  that  this 
court  refused  to  interfere  with  the  prero^^a- 
tives  of  the  Governor  in  the  discharge  of  his 
duties  in   the  case  of  State  ex  rel.   Robb  v. 
Stone,  120  Mo.  428,  25  S.  W.  876,  23  L.  K.  A. 
194,  41  Am.  St.  Rep.  705,  and  likewise  re- 
fused  to  interfere  with  the  inlierent    i)owers 
of  the  Legislature  in   State  ex  rel.  v.  Holte, 
151  Mo.  362,  52  S.  W.  262,  74  Am.  St.  Rep. 
537.      In  its    dealings    with  the  powers   and 
acts  of  the  co-ordinate  branches  of  govern- 
ment,   this  court  has  scrupulously  refrained 
fi-om    interfering,   and  has  accorded  to  such 
co-ordinate    branches  the    fullest   measure  of 
respect;   and  upon    the    same    principle    this 
court  will  not  tolerate  any  intei-ference  by  a 
co-ordinate  branch  of  the  government,  or  by 
any  one  else,  with  the  powers  and  duties  and 
prerogatives  and  dignity  of  this  court.     The 
people  of  this  State  conferred  those  powers, 
in  trust  for  themselves,  upon  this  court ;  and 
this  court  will   sacredly  and  fearlessly  guard 
and  protect  them  until  the  people  discharge 
the  trust  and  give  the  powers  to  some  other 
tribunal,    if  they  shouM  ever    be  minded  so 
to  do.     It    is  also    well-settled  law  that  the 
court  alone  in  which  a  cojitempt  is  commit- 
ted, or  whose  authority  is  delied,  has  power 


214   THE  LAW  OF  CONSTRUCTIVE  CONTEMPT. 

to  punish  it,  or  to  entertain  proceedings  lo 
that  end.  ^o  other  cout't  has  an^^  jurisdic- 
tion oi-  })ower  in  such  cases.  Rapalje  on 
Contempt,  §  13;  7  Am.  &  Eng.  Enc.  Law 
(2d  Ed.),  p.  34,  and  cases  citei  in  note  1, 
and  from  which  it  appears  that  this  is  the 
rule  laid  down  by  the  United  States  courts, 
and  by  the  couits  of  Alabama,  California, 
Colorado,  Florida,  IJhnois,  Iowa,  Kentucky, 
Louisiana,  Mississippi,  Nevada,  ]N^ew  Hamp- 
shire, Tennessee,  Texas,  Utah,  and  Vermont. 
Paterson  on  Liberty  of  the  Press,  etc.,  p. 
121,  says  this  power  must  be  accorded  to  all 
courts,  just  as  it  is  possessed  by  Parliament. 
The  law  now  known  as  section  1616,  Rev. 
St.  1899,  has  been  on  the  statute  books,  in 
substantially  the  same  form,  ever  since  1845. 
Rev.  St.  1845,  p.  338,  c.  45,  §  61.  It  was  re- 
ferred to  by  this  court  in  Harrison  v.  State, 
10  Mo.  688,  but  its  constitutionality  was  not 
called  in  question,  or  discussed  or  decided. 
The  same  law,  then  known  as  section  65,  c. 
47,  p.  542,  1  Rev.  St.  1855,  was  referred 
to  by  this  court  in  the  matter  of  Greene  Co. 
V.  Rose,  38  IMo.  390,  where  it  was  said : 
"When  the  contempt  is  committed  in  the  im- 
mediate view  and  presence  of  the  court,  it 
may  be  punished  summarily.  In  all  other 
cases  the  part}'  chai-ged  must  be  notified  of 
the  accusation,  and  have  a  reasonable  time 
to  make  his  defense."  But  the  power  of  the 
Legislature  to  enact  the  law  was  not  raised 
or  decided.  The  same  law,  then  known  as 
section  1056,  Rev.  St.  1879,  was  referred  to 


THK    LAW    Ol'    CONSTRUCTIVK    CONTESIPT.        215 

in  Ex  parte  Crenshaw,  80  M(j.,  loc.  cit.  450, 
and  tho  coui't  was  nnaninious  in  holding-  that 
it  did  not  liavc  llu'  effect  of  taking  away  the 
power  of  conrts  to  i)nnish  other  kinds  of 
eoiitemjjts.  The  constitutionality  of  the  law 
was  not  considered  by  the  majority  of  the 
coni't,  hut  Sherwood,  J.,  concurred  in  the 
judgment,  holding  the  statute  "  to  be  uncon- 
stitutional, as  an  invasion  by  the  Legislature 
of  the  domain  of  the  judiciary."  It  follows 
that  the  Legislature  exceeded  its  jjowers 
when  it  enacted  section  1616,  Rev.  St.  1899, 
and  that  this  court  has  an  inherent  and  con- 
stitutional right  to  punish  contempts  sum- 
marily, which  cannot  be  taken  away,  abridged, 
limited,  oi"  regulated  by  the  legislature. 
For  the  manner  in  which  this  power  may  be 
executed,  this  court  is  answerable  alone  to 
the  sovereign  people  of  this  State ;  and  to 
their  judgment  and  wishes,  legally  expressed, 
it  has  always  given  cheerful  and  respectful 
obedience,  and  it  stands  ready  to  do  so  now 
and  at  all  times. 

5.  Right  of  Trial  by  Jury  in  Contem[jt 
Cases. —  The  defendant  invokes  the  [)r()teetion 
of  section  28,  art.  2,  of  the C'onstitutiou,  which 
provides  that  "  the  right  of  trial  by  jury,  as 
heretofore  enjoyed,  shall  remain  inviolate,'' 
and  demands  a  trial  by  jury  in  this  case,  and 
incidentally  argues  that  it  is  not  seemly  or 
fair  that  he  should  be  tried  for  contem[)t  by 
judges  of  the  court  that  he  has  scandalized. 
The  judges  of  this  court  would  have  gladly 
sent    this     matter    to    some    other    court  for 


216   THE  LAW  OF  CONSTRUCTIVE  CONTEMPT. 

trial,  and  by  a  jmy,  too,  if  such  a  course  had 
any  precedent  or  justification  in  law.  But  as 
such  a  course  would  have  been  illegal  and  a 
shirking-  of  their  imperative  obligations  under 
the  law,  they  had  no  option  but  to  deny  the 
request  and  to  execute  the  law.  Attention 
has  already  been  called  to  the  law  as  laid 
down  by  Judge  Cooley  in  his  work  on  Con- 
stitutional Limitations  (6th  Ed.),  p.  389,  note 
2,  wherein  he  says :  "  Cases  of  contempt  of 
court  were  never  triable  by  jury,  and  the  ob- 
ject of  the  power  would  be  defeated  in  many 
cases  if  they  were."  Cases  from  England, 
Pennsylvania,  Maine,  N^ew  York,  Tennessee, 
Illinois,  Arkansas,  Kentucky,  North  Carolina, 
Mississippi,  i^ew  Hampshire,  Connecticut,  and 
Rhode  Island  are  cited  by  the  learned  author 
in  support  of  the  rule.  Rapalje  on  Contempts, 
§  10,  says :  "  It  has  been  held  that  the  pro- 
vision in  the  Constitution  of  theUnited  States 
that  the  trial  of  all  crimes  shall  be  by  jury 
does  not  take  away  the  right  of  court  to  pun- 
ish contempts  in  a  summary  manner.  The 
provision  is  to  be  construed  to  relate  only  to 
those  crimes  which,  by  our  former  laws  and 
customs,  had  been  tried  b\"  a  jury."  The  au- 
thor cites  in  support  of  the  text  the  cases  of 
Hollingsworth  v.  Duane,  Wall.  Sr.  77,  Fed. 
Cas.  No.  0,616,  Ex  parte  Grace,  12  Iowa,  208, 
79  Am.  Dec.  529,  and  State  v.  Doty,  32  N.  J. 
Law,  403,  90  Am.  Dec.  671.  In  the  case  last 
cited  the  Supreme  Court  of  New  Jersey  held 
that  the  constitutional  right  of  trial  by  jury 
was  not  infringed  by  the  infliction  of  summary 


THK    LAW    (JK    (;ONSTKUCTIVK    CONTHMIT.       217 

punislniicnt  for  contempt  of  court.      In   that 
case  the  contempt  consisted  of  impioper  con- 
duct towards  a  juror,   not  in   tlie  presence  of 
the  court.     Kapalje    on    Contem[)ts,    §    112, 
says:      "  In   nearly  all  of  the  States,  as  well 
as   under  the  practice  of  the  Federal  courts, 
the  common-law  rule  denying-  to  one  accused 
of  contempt  the  right  of  trial  by  jury  is  still 
in    force,  the  courts  holding  that  the   various 
constitutional  guaranties    of  this  right   iiave 
no  application  to  these  proceedings."      In  4 
Enc.  of  PI.  &  Tr.,  p.  789,  the  rule  of  law  is 
thus  aptly  stated  :  '^  Although  the  question  de- 
terminable   in     proceedings   to    redress    con- 
tempts is  one  of  fact,  and  not  of  law,  yet,  the 
offense  itself  being  one  against  the  court  and 
the  majesty  of  the  law,   neither  at  common 
law  was  there  any  right  to  a  jui-y  trial  (Wells 
V.  Caldwell,  1  A.  K.  Marsh.  U\  ;  Eilenbecker 
V.  District  Court,  134  U.  S.  31,  10  Sup.  Ct. 
424,  33  L.  Ed.  801),  nor  according  to  the  cur- 
rent weight  of  modern  authoi-ity,  except  so 
far    as    the    rule   has  been   modified  by  local 
statutes  [the  author  evidently  means  ''Con- 
stitutions," for  the  statutes  could  not  confer 
a  right  of  trial  by  jury  which  the  Constitu- 
tion°did    not    permit],    does  any  such  right 
inure  to  the  benefit  of  the  contemner.''      The 
author  cites  in  sup[)ort  of  the  text  the  follow- 
ing cases  :   Xeel  v.  State,  9  Ark.  259,  50  Am. 
Dec.  209  ;  Huntington  v.  McMahon,  48  Conn. 
174;  Ex  parte  (irace,  12  Iowa,  208,  79   Am. 
Dec.  529;  :McDonnell  v.  Henderson,  74  Iowa, 
619,  38  N.  W.  512 ;  State  v.  Durein,  40  Kan. 


218       THE    LAW    OF    CONSTRUCTIVE    CONTEMPT. 

695,  27  Pac.  148  ;  Hart  v.  Robinett,  5  Mo.  11 ; 
Gaudy  V.  State,  13  Neb.  445,  14  N.  W.  143; 
Lnddeii  V.  State,  31  Neb.  429,  48  N.  AV.  61 ; 
State  V.  Matthews,  37  N.  H.  450  ;  Bates'  Case, 
55N.H.325;Bnrkev.Temtory(]894),20kl. 
499,  37  Pac.  829;  Grow  v.  State,  24  Tex.  12; 
King  V.  OhioR.R.Co.,7Biss.529,  Fed. Gas. 
No.  7,800.  The  author  further  adds,  at  the 
same  page  :  "  x\ud  it  is  held  that  the  fact  that 
thei'e  is  no  I'ight  to  a  jury  trial  does  not  vio- 
late the  constitutional  provisions  which  guar- 
anty the  same;"  citing  in  sujjport  thereof 
State  V.  Mitchell,  3  S.  D.  223,  52  N.  W. 
1052;  State  v.  Becht,  23  Minn.  411,  and 
Mandercheid  v.  District  Gt.,  69  Iowa,  240, 
28  N.  W.  551.  The  case  of  Hart  v.  Robi- 
uett,  5  Mo.  11,  cited,  was  a  rule  on  a  consta- 
ble to  show  cause  why  he  had  not  returned 
an  execution  within  the  time  requii'ed  by  law. 
The  ti'ial  court  submitted  the  matter  to  the 
determination  of  a  jury.  This  court  held 
that  this  was  error,  saying:  "  The  cause  was 
matter  to  be  shown  to  the  court,  and  not  uiatter 
to  be  found  by  a  jury.  The  proceeding  was 
in  the  nature  of  a  proceeding  for  a  contempt, 
and  was  matter  to  be  inquired  into  and  adju- 
dicated by  the  court."  In  Reg.  v.  Skip- 
worth  &  De  Gasti'o,  12  Gox's  Grim.  Cases, 
371,  already  referred  to,  De  Castro  demanded 
a  trial  by  jury.  The  following  colloquy  took 
place  between  him  and  Blackbui-n,  J.  :  De 
Castro  said  :  "I  am  not  aware  that  I  have 
committed  any  contempt,  and  if  I  have  done 
so,  it  was  not  my  intention  ;  but    I    submit 


THE    LAW    OF    CONSTFiUCTIVE    CONTEMIT.        219 

that  tin*  cluirfife  ought  to  l)e  trie*)  l)y  a  jury. 
Ik'f'oie  tlieni  I  could  prove  what  I  have  stated 
to  l)e  true."  Blackl)uiii  iutimated  that  iu  a 
})roce('diug-  for  couteuipt  the  uiattei-  was  to  l)e 
trii'd  by  tlie  court.  De  Castro:  "  Theu  you 
decide  that  you  are  to  try  it  youi'selves? 
Bhicklniin,  J.  :  Sucli  is  the  course.  De  Cas- 
ti'o:  But,  you  see,  I  am  chai-ged  with  con- 
tempt in  complaining'  of  the  Loi-d  Chief  Jus- 
tice, and  you  are  liis  colleagues.  It  is  not  fair 
that  you  should  try  it  without  a  jui-y.  Black- 
burn, J.  :  To  use  any  argument  upon  that 
point  would  be  without  avail.  It  hjis  long- 
been  settled  that  an  attempt  to  interfere  with 
the  course  of  justice  is  a  contempt  of  court. 
It  is  too  late  to  dispute  that."  Accordingly,  a 
jury  trial  was  denied  him.  In  Kespublica  v. 
Oswald,  1  Dall.  319,  1  L.  Ed.  155,  the  de- 
fendant, as  i)ublisher  of  the  Independent  Ga- 
zetteer, published  an  addi'ess  to  the  public 
concerning  a  pioceeding,  then  pending  in 
coui't,  whei'ein  he  was  a  pai-fy.  which  tended 
to  prejudice  the  i)ublic  with  reference  to  the 
merits  of  such  pending  litigation.  He  was 
cited  for  contempt.  It  was  insisted  that  the 
Constitution  of  l*ennsylvania  guarantied  hiin 
a  trial  by  jui-y,  and  hence  the  court  could  not 
itself  try  the  case.  The  Supreme  Court  of 
that  State,  however,  si)eaking  through  Mc- 
Kean,  C.  J.,  said  :  "  It  is  certain  that  the  pro- 
ceeding 1)}'  attachment  is  as  old  as  the  law 
itself,  and  no  act  of  the  Legislature,  or  sec- 
tion of  the  Constitution,  has  interposed  to 
alter    or    suspend  it.       Besides    the  sections 


220     Tin:  law  of  constructive  contempt. 

which  have  been  ah-cady  read  from  the  Con- 
Htitution,  thei'c  is  another  section,  which 
declares  that'  trials  by  jury  shall  be  as  hereto- 
fore ;  '  and  surely  it  cannot  be  contended  that 
the  offense  with  which  the  defendant  is  now 
charged  was  heretofore  tried  by  that  tribunal. 
If  a  man  commits  an  outrage  in  the  face  of 
the  court,  what  is  there  to  be  ti'ied?  What 
further  evidence  can  be  necessary  to  con- 
vict him  of  the  offense  than  the  actual  view 
of  the  judges?  A  man  has  been  compelled  to 
enter  into  security  for  his  good  behavior  for 
giving  the  lie  in  the  presence  of  the  judges  in 
Westminster  Hall.  On  the  present  occasion 
is  not  the  proof,  from  the  inspection  of  the 
paper,  [is  full  and  satisfactory  as  any  that 
can  be  offered?  And  whether  the  publica- 
tion amounts  to  a  contempt  or  not  is  a  point 
of  law,  which,  after  all,  it  is  the  province  of 
the  judges,  and  not  of  the  jury,  to  determine. 
Being  a  contempt,  if  it  is  not  punished  im- 
mediately, how  shall  the  mischief  be  correct- 
ed? Leave  it  to  the  customary  forms  of  a 
trial  by  jury,  and  the  cause  may  be  continued 
long  in  suspense,  while  the  party  perseveres 
in  his  misconduct.  The  injurious  consequen- 
ces might  then  be  justly  imputed  to  the  court 
for  refusing  to  exercise  their  legal  power  in 
preventing  them.  For  these  reasons  we  have 
no  doubt  of  the  competency  of  our  jurisdic- 
tion, and  we  think  that  justice  and  propriety 
call  upon  us  to  proceed  b}''  attachment."  Ac- 
cordingly, the  defendant  was  denied  a  trial 
by  jury,  and  was  fined  $100  and  sent  to  pris- 


THE  LAW  OK  CONSTRUCTIVE  CONTEMIT.   221 

on  for  80  days.  This  case  will  !)(•  tiij^nin  i-c- 
feiTC'd  t(j  in  connection  with  the  discnssion  of 
the  liberty  of  the  [)i'ess.  The  right  of  tiial 
by  jnry  in  contempt  cn.ses  nevei"  existed  at 
connnon  law,  and  was  wholly  nnknown  to 
the  laws  of  Missouri  at  the  time  of  the  adop- 
tion of  the  Constitutions  of  1820,  1865,  and 
1875.  The  guarant}^  of  tlie  Constitution  of 
1875,  therefore,  that  ^' the  right  of  ti'ial  by 
jury,  as  heretofore  enjo3'ed,  shall  I'emain  in- 
violate," was  not  intended  to  confer  such  a 
light  in  contempt  cases,  for  such  a  right 
had  never  been  "  heretofore  enjoyed,"  either 
in  this  State  or  in  England.  There  is,  there- 
fore, no  man  in  the  demand  of  the  defendant 
in  this  ease  for  a  trial  l)y  jury. 

But,  even  if  all  this  was  not  true,  what  is 
the  attitude  of  the  defendant  in  this  case, 
and  what  issues  of  fact  had  he  raised  that  a 
jury  could  pass  on?  The  retui-n  made  by  the 
defendant  raises  absolutely  no  issue  of  fact 
whatever.  It  admits  that  the  defendant  is 
the  publisher  of  the  paper,  and  that  he  pub- 
lished the  article.  A  verdict  of  a  jury  could 
uot  settle  those  facts  any  more  conclusively 
than  the  defendant  himself  has  done  by  his 
admission.  The  return  does  not  dare  to  say 
that  tlie  charges  made  are  true.  Xeithei*  does 
it  plead  any  facts  in  mitigation,  What  issue 
of  fact  is  there,  then,  for  a  jury  to  pass  upon? 
l*ositively  none.  The  ivtum  raises  only 
questions  of  law,  and,  if  the  case  was  one 
wherein  a  jury  could  be  impaneled,  the  court 
would  be  compelled,   under  this  state  of  the 


222       THE    LAW    OF    CONSTRUCTIVE    CONTEMPT. 

pleadings,  to  direct  a  verdict,  for,  after  the 
court  had  decided  tlie  questions  of  law,  the 
case  would  be  decided,  and  there  would  be  no 
function  for  the  jury  to  perform.  These  con- 
siderations are  recorded  here,  not  because 
there  is  a  pai'ticle  of  doubt  in  the  mind  of 
the  court  that  the  defendant  is  not  entitled  to 
a  trial  by  jury,  but  simply  for  the  purpose 
of  showing  that,  even  if  the  defendant  was 
entitled  to  such  a,  tiial,  it  would  do  him  no 
good  in  this  case,  and  the  result  would  neces- 
sarily be  the  same.  It  must  be  remembered 
that  this  is  a  case  of  contempt,  and  not  one 
of  libel.  In  libel  cases  the  jury,  under  the 
direction  of  the  court,  determines  the  law  as 
well  as  the  fact.  Heller  v.  Pulitzer  Pul).  Co., 
153  Mo.  205,  5i  S.  W.  457.  In  contempt 
cases  the  whole  matter  is  for  the  determina- 
tion of  the  court.  6  Am.  &  Eng.  Enc.  Law 
(2  Ed.),  978,  and  cases  cited  in  note  1. 

6.  Due  Process  of  Law. —  The  defendant 
also  invokes  the  protection  of  section  30  of 
article  2  of  the  Constitution,  which  provides 
"  that  no  person  shall  be  deprived  of  life,  lib- 
erty or  property  without  due  process  of  law." 
The  defendant  has  been  accorded  the  full 
benefit  of  this  wise  provision  of  the  organic 
law.  He  has  been  regularly  charged,  brought 
into  court,  has  appeared  in  person  and  b}'^ 
counsel,  has  pleaded,  and  has  had  a  trial  ac- 
cording to  the  practice  in  such  cases.  He 
has  had  his  day  in  court,  and  therefore  he 
has  had  the  benefit  of  due  process  of  law. 
Cooley's  Const.  Law  (6th  Ed.),  p.  481.  This 


THE    LAW    OF    CON8TKI  CTIVK    CONTEMIT.        223 

also  disposes  of  the  claim  that  the  (JcfeiKiaiit 
has  been  deprived  in  some  wa}^  of  the  benefit 
of  the  fourteenth  amendment  to  the  Consti- 
tution of  the  United  States.  Dartmonth  Col- 
lege V.  AVoodward,  4  Wheat.  519,  4:  L.  Ed. 
629;  xVndrns  v.  Insurance  Co.,  1(J8  Mo.  loc. 
cit.  1(32,  G7  S.  W.  582 

7.  Libeity  of  the  Pi-ess. —  The  defendant  in- 
vokes section  M  of  article  2  of  the  Constitu- 
tion, which  is  as  follows:  "  That  no  law  shall 
be  passed  impairing-  the  freedom  of  speech  ; 
that  every  person  shall  be  free  to  say,  write 
or  publish  whatever  he  will  on  any  snbject, 
being  responsible  for  all  abuse  of  that  liberty; 
and  that  in  suits  and  prosecutions  for  libel, 
the  truth  thereof  may  be  given  in  evidence, 
and  the  jury,  under  the  direction  of  the 
court,  shall  determine  the  law  and  the  fact." 
It  will  be  observed  that  the  liberty  of  the 
press  is  not  mentioned  at  all.  The  freedom 
of  speech  is  guarantied  to  "every  person." 
Of  course,  the  press  will  be  included  in  the 
general  designation  of  "  every  person."  But 
the  press  has  no  greater  liberty  in  this  regard 
than  any  citizen.  Xe\vspapers  and  citizens 
have  the  same  right  to  tell  the  truth  about 
anybody  or  any  institution.  Neither  has  any 
right  to  scandalize  any  one  or  anv  institution. 
Barnes  v.  Campbell,  59  X.  II.  l28,  47  Am. 
Rep.  183;  Pratt  v.  Pioneer  Press  Co.,  80 
Minn.  41,  U  N.  W.  02;  Mallorv  v.  Pioneer 
Press  Co. ,34Minn.  521,  2GX.  W.'^9()4;  Bron- 
son  V.  Bruce,  59  :\[ieh.  467,  26  N.  W.  671,  60 
Am.  Rep.    307;  McAllister  v.   Detroit  Free 


224       TlIK    LAW    OF    CONSTRUCTIVE    COiNTEMPT. 

Press,  76  Mich.  338,  43  N.  W.  431,15  Am.  St. 
Rej).  318;  JSTcgley  v.  Farmvv,  60  Md.  158,  45 
Am.  Rep.  715.  The  first  amendment  to  the 
Constitution  of  the  United  States  specifically 
mentions  the  liberty  of  the  press.  It  is  as 
follows  :  "  Congress  shall  make  no  law  respect- 
ing* the  establishment  of  religion,  or  prohibit- 
ini»-  the  free  exercise  thereof ;  or  abrid^ino* 
the  freedom  of  speech,  or  of  the  press,  oi* 
the  right  of  the  people  peaceably  to  as- 
semble, and  to  petition  the  government  for 
a  redress  of  grievances."  It  will  be  noted, 
however,  that,  though  the  press  is  here  spe- 
cially referred  to,  it  is  coupled  with  the  free- 
dom of  speech  of  the  citizens,  and  no  special 
freedom  is  conferred  upon  the  om;  that  is  not 
likewise  conferred  upon  the  other.  It  is  most 
important,  therefore,  to  clearly  understand 
what  is  meant  by  "  freedom  of  speech,"  or, 
as  it  is  usually  termed  when  speaking  of  news- 
papers, the  "  liberty  of  the  press." 

In  18  Am.  &  Eng.  Enc.  Law  (2d  Ed.),  p. 
1125,  "  liberty  of  the  press  "  is  thus  defined: 
"  The  liberty  of  the  press  consists  in  the  right 
to  publish  with  impunity  the  ti-uth,  with  good 
motives,  and  for  justifiable  ends,  whether  it 
respects  governments  or  individuals  ;  the  right 
freely  to  publish  whatever  the  citizen  may 
please,  and  to  be  protected  against  any  re- 
sponsibility for  so  doing,  except  in  so  far  as 
such  publications,  from  their  blasphemy,  ob- 
scenity, or  scandalous  character,  may  be  a 
public  offense,  or  as  by  their  falsehood  and 
malice  they  may  injuriously  affect  the  st^ind- 


Tin:   r,Aw  of  constrictive  contkmit.      22/) 

ing*,  reputation,   oi-  pecuiiiarv  intorestR  of  in- 
diviflnnls.'^ 

Judge  Cooley,  in  iiis  iiivaliuibit'  work  on 
Constitutional  Limitations  (6th  Ed.),  p.  518, 
Bays:  "The  coiiHtitutional  liberty  of  speech 
and  of  the  press,  as  we  understand  it,  implies 
a  right  to  freely  utter  and  publish  whatever 
the  citizen  ma}'  please,  and  to  be  pi'otected 
against  any  responsibility  for  so  doing,  except 
so  far  as  such  publications,  from  their  blas- 
phemy, obscenity,  or  scandalous  character, 
may  be  a  jiublic  offense,  or  as  by  theii*  false- 
hood and  malice  they  may  injuriously  affect 
the  standing,  reputation,  or  pecuniaiy  inter- 
ests of  individuals.  Or,  to  state  the  same 
thing  in  somewhat  different  words,  we  un- 
derstand liberty  of  speech  and  of  the  press  to 
imply  not  only  liberty  to  publish,  but  com- 
plete immunity  from  legal  censure  and  pun- 
ishment for  the  publication,  so  long  as  it  is 
not  hai-mful  in  its  character,  when  tested  b}^ 
such  standards  as  the  law  affords.  For  these 
standards  we  must  look  to  the  common  law 
rules  which  were  in  force  when  the  constitu- 
tional guaranties  were  established,  and  in 
reference  to  which  they  have  been  adopted.'' 

Patei'son  on  the  Liberty  of  the  I'ress,  etc., 
p.  5,  clearly  explains  the  right  as  follows: 
"The  restraints  which  confine  the  natural  lib- 
erty of  speech  will  be  found  ranged  under  foui* 
great  heads  of  blasphemy,  immorality,  sedi- 
tion, and  defamation.  There  are  bounds  to  be 
set  to  the  expression  of  thoughts  and  opinions 
and  these  must  rest  on  the  fundamental  [)riii_ 


226        THIO    LAW    OF    CONSTRUCTIVE    CONTEMPT. 

ciples  on  which  all  societies  are  founded.  It 
is  assumed  that  there  is  a  God  in  whom  all 
citizens  in  their  gravest  moods  are  so  inter- 
ested that  it  becomes  offensive  to  all  the  rest 
if  any  one  speaks  of  Him  publicly  in  a  scur- 
rilous and  conteniptuous  tone,  such  as  would 
provoke  a  breach  of  the  peace.  Hence  the 
first  limit  to  free  speech  is  blasi)hemy .  There 
are  also  rules  of  morality,  which  are  so  uni- 
versal, and  so  underlie  the  conscience  of  every 
individual,  that  speeches  and  writings  which 
treat  these  rules  with  public  contempt,  and 
sap  and  mine  the  simple  faith  in  all  that  is 
good,  noble,  and  worthy,  are  also  deemed  a 
species  of  constructive  breach  of  the  peace 
too  irritating  to  be  allowed.  Hence  another 
limit  to  free  speech  and  writing  is  immoral- 
ity. Again,  there  are  rules  of  good  conduct, 
founded  on  the  general  duty  of  all  citizens  to 
support  the  government  under  which  they  live, 
and,  if  possible,  to  insure  due  respect  and  fair 
treatment  to  its  leading  administrators.  Hence 
gross  contemi)t  of  all  laws,  and  violent  men- 
aces of  revolt  against  such  guardians,  must 
not  be  allowed,  for  these  necessarily  discom- 
pose every  citizen,  and  pei'plex  him  with  fear 
of  change  or  fear  of  public  disaster  and  an- 
archy. And  when  this  last  head  is  still  fur- 
ther examined,  it  will  appear  that  the  great 
factors  of  government,  consisting  of  the  Sov- 
ereign, the  Parliament,  the  ministei's  of  State, 
ihe  courts  of  justice,  must  all  be  recognized 
as  holding  functions  founded  on  sound  princi- 
ples,   and   to    be  defended  and  treated  with 


TlIK    LAW    OF    CONSTUUCTIVK    CONTKMPT.        227 

an  established  and  well-nigh  unalteiahle  re- 
spect. Each  of  these  threat  institutions  has 
peculiar  virtues  and  peculiai"  weaknesses,  but 
whether  at  any  one  time  the  virtue  or  the 
Aveakness  piedoniinates,  there  must  be  a  cer- 
tain standard  of  decorum  reserved  for  all. 
Each  guarded  remonstrance,  each  lieiy  in- 
vective, each  burst  of  indignation  must  rest 
on  some  basis  of  respect  and  deference  to- 
wards the  depository,  for  the  time  being,  of 
every  great  constitutional  function.  Hence 
another  limit  of  free  speech  and  writing  is 
sedition.  And  yet  within  that  limit  there  is 
ample  room  and  verge  enough  for  the  freest 
use  of  the  tongue  and  pen  in  passing  stric- 
tures on  the  judgment  and  conduct  of  every 
constituted  authority.  While  the  restiictions 
already  mentioned,  which  are  founded  on 
blasphemy,  immorality,  and  sedition,  .show 
the  boundai'ies  of  free  speech  and  thought  as 
affecting  the  i)ublic  generally,  there  is  a 
fourth  limit  on  the  other  side  as  affecting 
individuals,  known  under  the  head  of  'Libel,' 
or  the  invasion  of  the  reputation  (jf  private 
persons.  This  last  limit  involves  the  neces- 
sity of  at  once  tracing  the  origin  of  that 
tendency  of  the  individual  to  acquire  such 
reputation  and  the  valur  it  possesses  in  his 
eyes,  for  it  is  here  that  the  exercise  of  one 
natural  right  clashes  directly  with  the  exer- 
cise of  the  other,  and  both  are  equally  natu- 
ral and  equally   inevitable.'" 

No  better  oi'  clearer  exposition  of  this  sub- 
ject  has  ever   been   written   than  what  is  sai<l 


228       THK    LAW    or    CUNfeTKUCTIVE    (ONTKMl'T. 

by  Mc'Kean,  C.  J.,  of  the  Supreme  Court  of 
Peiiu.sylvania,  in  Respublica  v.  Oswald,  1 
Dall.  319,  1  L.  Ed.  155.  He  said:  "Asser- 
tions and  impntatioiis  of  this  kind  are  cer- 
tainly calenlated  to  defeat  and  discredit  the 
administration  of  justice.  '"  *  *  And 
here  I  must  be  allowed  to  observe  that 
libeling  is  a  great  crime,  whatever  senti- 
ments may  be  entertained  by  those  who 
live  by  it.  With  respect  to  the  heart  of  the 
libeler,  it  is  more  dark  and  base  than  that 
of  the  assassin,  or  than  his  who  commits  a 
midnight  arson.  It  is  true  that  I  may  never 
discover  the  wretch  who  has  burned  my  house 
or  set  fire  to  my  barn  ;  but  these  losses  are 
easily  repaired,  and  bring  with  them  no  por- 
tion of  ignominy  or  reproach.  But  the  at- 
tacks of  the  libeler  admit  not  of  this  consola- 
tion. The  injuries  which  ai"e  done  to  the 
character  and  reputation  seldom  can  be  cured, 
and  the  most  innocent  man  may  in  a  moment 
be  deprived  of  his  good  name,  upon  which, 
perhaps,  he  depends  for  all  the  prosperity  and 
all  the  happiness  of  his  life.  To  what  tiibuual 
can  he  then  resort V  How  shall  he  be  tried, 
and  by  whom  shall  he  be  acquitted?  It  is  in 
vain  to  object  that  those  who  know  him  will 
disregard  the  slander,  since  the  wide  circula- 
tion of  the  public  prints  must  render  it  im- 
practicable to  apply  the  antidote  as  far  as  the 
poison  has  been  extended.  l^ov  can  it  be 
fairly  said  that  the  same  opportunity  is  given 
to  vindicate  which  has  been  employed  to  de- 
fnmo  him,  for  many  will  read  the  charge  who 


Tin:    LAW    (»1'    (ONSTfCUCriVK    CONIKMIT.         22\) 

will  nc'VL'i'  sec  the  answei- ;  and,  while  the 
object  of  accusation  is  |)ublicly  pointed  at,  the 
nialicions  and  malignant  author  i*ests  in  the 
dishonoi-ahk'  seeui-ityof  an  anonymous  signa- 
tui'e.  Where  much  has  been  said  sometlung 
will  be  believed;  and  it  is  one  of  the  many 
artifices  of  the  libeler  to  <^ive  to  his  char^^es 
an  asi)ect  of  g-enerul  support  by  changing 
and  multiplying  the  style  and  nanu;  of 
his  performances.  But  shall  such  things 
be  transacted  with  impunity  in  a  free 
country,  and  among  an  enlightened 
people?  Let  every  honest  man  make  this 
appeal  to  his  heart  and  understanding, 
and  the  answer  must  be  Xo  !  Wliat,  then,  is 
the  meaning  of  the  Bill  of  Rights  and  the 
Constitution  of  Pennsylvania  when  they  de- 
clare '  that  the  freedom  of  the  jjress  shall  not 
be  restrained,'  and  '  that  the  printing  pi'esses 
shall  be  fi'ee  to  every  person  who  undertakes 
to  examine  the  pi'oceedings  of  the  Legisla- 
ture, or  any  part  of  the  governmentV  '  llow- 
evei'  ingenuity  may  construe  the  expressions, 
there  can  be  little  doubt  of  the  just  sense  of 
these  sections.  They  give  to  every  citizen  a 
right  of  investigating  the  conduct  of  those 
who  are  intrusted  with  the  public  business, 
and  they  effectually  preclude  any  attempt 
to  fetter  the  press  l)y  a  licensor.  The  same 
principles  were  settled  in  England  so  far 
back  as  the  reign  of  William  III,  and  since 
that  time  we  all  know  there  has  been  the 
freest  animadversion  upon  the  conduct  of 
the     ministers  of  that    nation.      liut   is  thei-e 


230       THE    LAW    OF    CONSTRUCTIVE    CONTEMPT. 

anything  in  the  Inngnage  of  the  Consti- 
tution (mucii  less  in  its  spirit  and  inten- 
tion) which  authorizes  one  man  to  impute 
crimes  to  another,  foi*  which  the  law  has 
provided  the  mode  of  trial  and  the  degree 
of  punishment?  Can  it  he  presumed  that 
the  slandei'ous  words,  which,  when  spoken  to 
a  few  individuals,  would  expose  the  speaker 
to  punishment,  become  sacred,  by  the  author- 
ity of  the  Constitution,  when  delivered  to  the 
public  thi'ough  the  more  permanent  and  dif- 
fusive medium  of  the  press?  Or  will  it  be 
said  that  the  constitutional  I'ight  to  examine 
the  proceedingsof  government  extends  to  war- 
rant an  anticipation  of  the  acts  of  the  Legis- 
lature or  the  judgment  of  the  court;  and  not 
only  to  authorize  a  candid  commentary  upon 
what  has  been  done,  but  to  permit  every  en- 
deavor to  bias  and  intimidate  with  respect  to 
matter  still  in  suspense?  The  futility  of  any 
attempt  to  establish  a  construction  of  this  sort 
must  be  obvious  to  every  intelligent  mind. 
The  true  liberty  of  the  press  is  amply  secured 
by  permitting  eveiy  man  to  publish  his  opin- 
ions ;  but  it  is  due  to  the  peace  and  dignity 
of  society  to  inquire  into  the  motives  of  such 
publications,  and  to  distinguish  between  those 
which  are  meant  for  use  and  reformation,  and 
with  an  eye  solely  to  the  public  good,  and 
those  which  are  intended  merely  to  delude 
and  defame.  To  the  lattei-  description,  it  is 
impossible  that  any  good  government  should 
afford  protection  and  impunity.  If,  then, 
the  liberty  of  the  press  is    regulated    by  any 


TIIK    LAW     OF    COXSTUrCTIVK    COXTKMIT.        281 

jnst  pi'iiiciple,  tliere  can  he  little  doul)t  that 
he  who  attc'mi)ts  to  raise  a  prejudice  against 
hifi  anta«j^oni.st  in  the  minds  of  those  that  mnst 
ultimately  determine  tlie  dispute  between 
them,  who,  for  that  pnr[)ose,  represents  him- 
self as  a  persecuted  man,  and  asserts  that  his 
jud<^es  are  influenced  by  passion  and  preju- 
dice, willfull}'  seeks  to  corrupt  the  source  and 
to  dishonor  the  administration  of  justice." 

This  wholesome  and  vigoi'ous  code  of  mr)r- 
als  and  i-ule  of  conduct  is  just  as  necessary  to- 
day as  it  was  when  it  was  established  in  the 
early  liistory  of  these  United  States.-  It  ac- 
coi'ds  with  the  sense  of  i-i<;ht  of  all  good  and 
l)atriotic  people,  and  those  who  live  by  slan- 
der must  expect  to  suffer  the  just  punish- 
ments which  the  law  imposes  for  their  crimes. 

Among  the  ten  commandments  given  b}^ 
God  to  Moses  was:  "Thou  shalt  not  bear 
false  witness  against  thy  neighbor."  Exorlus, 
c.  20,  verse  16.  And  when  Christ  went  into 
Judaea,  teaching  the  j^eople,  one  came  unto 
Him,  and  said,  "'Good  master,  what  good 
thingshall  I  do  that  T  may  have  eternal  life?" 
And  He  said  unto  him  :  "  Why  callest  thou  me 
good?  There  is  none  good  but  one.  That  is 
God.  But  if  thou  wilt  entei'  into  life,  keep 
the  Connnandinents.  He  saith  unto  him, 
'  Which?'  Jesus  said,  '  Thou  shalt  do  no  mur- 
der; thou  shalt  not  commit  adultery;  thou 
shalt  not  steal  ;  thou  shalt  not  bear  fals(>  wit- 
ness ;  honour  thy  father  and  thy  mother;  and 
thou  shalt  love  thy  neighbor  as  thyself.'" 
Matthew,  c.  19,  verses  17,  18,  and  19.   These 


232       TJIE    LAW    OF    CONSTRUCTIVE    CONTEMPT. 

obligations  are  just  as  binding  to-day  as  they 
have  always  been  since  they  were  thus  prom- 
ulgated. The  laws  of  Moses  also  provided 
that,  if  a  man  slandered  his  wife,  tlie  elders 
of  the  city  should  chastise  him,  and  should 
amerce  him  in  an  hundred  shekels  of  silver, 
which  should  be  given  to  the  wife's  father. 
Deut.  c.  22,  verses  13  to  19.  "  Coke  says  libel- 
ing and  calumniation  is  an  offense  against 
the  law  of  God."  Paterson  on  Liberty  of 
Pi'ess,  etc.,  pp.  224,  225.  Good  people  obey 
the  laws,  slander  no  one,  and  speak  the  truth. 
Othei's  must  do  so,  or  be  punished.  Upon  no 
other  basis  could  good  govei-nment  rest,  or 
the  rights  of  the  people  be  protected.  A 
court  that  failed  to  enforce  these  laws  would 
be  so  cowai'dly  that  it  would  be  contemptible, 
and  a  disgrace. 

It  is  material  to  investigate  the  history  of 
the  adoption  of  the  constitutional  guaranty 
of  free  speech,  and  to  understand  the  evils  it 
was  intended  to  supjn'ess.  Cooley's  Consti- 
tutional Lim.  (6th  Ed.),  p.  513,  says  these 
constitutional  provisions  were  not  intended  to 
confer  any  new  I'ights,  but  simply  to  protect 
the  citizen  in  those  already  possessed.  It  is 
then  said  :  "  At  common  law,  however,  it  will 
be  found  that  libeity  of  the  press  was  neither 
well  protected  nor  well  defined.  The  art  of 
pi'inting  in  the  hands  of  private  persons,  has, 
until  within  a  comi)aratively  recent  period, 
been  regarded  rather  an  instrument  of  mis- 
chief than  as  a  power  for  good,  to  be  fostered 
and  encouraged.     Like  a    vicious    beast,    it 


rilK    LAW    OF    CONSTKUCTIVE    CONTEMl'T.       233 

iHi<;ht  bu  iiKide  iisot'iil  if  j)i'o|)LMly  haiin  ssc'd 
and  I'csti'aiiiL'd.  'J^'lic  <j;()V('i'nmc'iit  assinnt'd 
to  itsc'lC  tlic  riglit  to  dc.'tcrnjiiu'  what  ini<^lit  or 
might  not  bu  publisiied ;  and  ('cnsors  wure 
ajj[)()intc'd,  without  wiiosc  pei'iiiissioii  it  was 
C'l-iiuiual  to  piiblisli  a  Ijook  or  |)a|)c*i-  upon  any 
suljji'Ct."  The  learned  author  then  points 
out  that  the  censoi'sliip  continued  until  tin* 
revolution  o(*  1(588,  and  it  was  a  criminal 
offense  to  publish  the  proceedings  of  Pailia- 
nient  or  of  the  courts,  or  even  the  curient 
news  of  the  day,  without  permission.  He 
also  shows  that  the  same  practice  was  fol- 
lowed in  the  American  colonies  until  the 
Revolution,  and  that  even  after  the  Rev- 
olution "the  public  bodies  of  the  united  na- 
tion did  not  at  once  invite  publicity  to  their 
deliberations.  The  Constitutional  Convention 
of  1787  sat  with  closed  doors,  and,  although 
impei'fect  reports  of  the  debates  have  since 
been  published,  the  injunction  of  secrecy 
upon  its  members  was  never  removed.  The 
senate  for  a  time  followed  this  example,  and 
the  first  open  debate  was  had  in  1793."  The 
same  author,  at  page  516,  then  adds :  "  It 
must  be  evident  from  these  historical  facts 
that  liberty  of  the  press,  as  now  understood 
and  enjoyed,  is  of  very  i-ecent  origin  ;  and 
commentators  seem  to  be  agieed  in  the  ojnn- 
ion  that  the  tei'm  itself  means  only  that  libei'ty 
of  publication  without  the  i)revious  permis- 
sion of  the  goveiMnnent,  which  was  obtained 
by  the  abolition  of  the  censorship.  In  asti'ict 
sense,  Mr.  Ilallam  says  it  consists  merely  in 


234     TUK  LAW  or  constructivj*:  contempt. 

exemption  Ironi  a  licenser.  A  similar  view  is 
expressed  by  De  Lolme.  '  Liberty  of  the 
j)ress,'  he  says,  'consists  in  this:  that  neither 
conrts  of  justice  nor  any  other  jnclges  what- 
ever ai'e  authorized  to  take  notice  of  writings 
intended  for  the  press,  l)ut  are  confined  to 
those  which  are  actually  printed.'  Black- 
stone  also  adopts  the  same  opinion, and  it  has 
been  followed  by  American  commentators  of 
standard  authoi'it}^  [he  refers  to  Story  on 
Const.,  §  1889 ;  2  Kent,  17  et  seq.,  and  Rawle 
on  Const,  c.  10]  as  embodying  correctly  the 
idea  incorporated  in  the  constitutional  law  of 
the  country  by  the  provisions  of  the  American 
Bill  of  Rights.  It  is  conceded  on  all  sides 
that  the  common-law  rules  that  subject  the 
libeler  to  responsibility  for  the  private  injury, 
or  the  public  scandal  or  disorder  occasioned 
by  his  conduct,  are  not  abolished  by  the  pro- 
tection extended  to  the  press  in  our  Consti- 
tutions. The  words  of  Parker,  C.  J.,  of 
Massachusetts,  on  this  subject,  have  been 
frequently  quoted,  generally  recognized  as 
sound  in  principle,  and  accepted  as  au- 
thority. '  Nor  does  our  Constitution  or  Dec- 
laration of  Rights,'  he  saj^s,  speaking  of  his 
own  State,  '  abrogate  the  common  law  in  this 
respect,  as  some  have  insisted.  The  sixteenth 
article  declares  that  "  liberty  of  the  press  is 
essential  to  the  security  of  freedom  in  a  State. 
It  ought  not,  therefore,  to  be  restrained  in  this 
commonwealth."  '  The  liberty  of  the  press, 
not  its  licentiousness  ;  this  is  the  construction 
which  a  just  regard  to  the  other  parts  of  that 


THE    [.AW    OF    rONSTKUf'TlVp:    fONTKMrT,        230 

instnimciif.  aiul  to  tho  wisrjoin  oi'  those  who 
foinulcd  it,  re'(juii-cs.  In  tho  olt'vcnth  ;irticle 
it  is  dechnvd  that  '  every  subject  of  the  coin- 
monwealth  oii^^ht  to  fiiul  a  eertaiii  i-eincdy  \)y 
having  i-eeourse  to  tlie  hnvs  for  all  iiijui-ies  or 
wrongs  which  he  may  recei\e  in  his  person, 
])i-operty,  or  character  '  ;  and  thus  the  general 
declai'ation  in  the  sixteenth  ai'ti(de  is  quali- 
fied. Besides,  it  is  well  undei'stood  and  re- 
ceived as  a  commentary  on  this  piovision  foi* 
the  libert}^  of  the  [)ress  that  it  was  intended 
to  prevent  all  such  previous  restraints  upon 
publications  as  had  been  practiced  by  other 
governments,  and  in  early  times  here,  to  stifle 
the  efforts  of  patriots  towards  enlightening 
theii"  fellow-subjects  upon  their  rights  anrl  the 
duties  of  rulers.  The  liberty  of  the  press  was 
to  be  unrestrained,  but  he  who  used  it  was 
to  be  responsible  in  case  of  its  abuse  ;  like 
the  right  to  keep  firearms,  which  docs  not 
jirotect  him  who  uses  them  for  annoyance  or 
destruction." 

This  is  the  true  rule.  The  liberty  of  the 
press  means  that  any  one  can  publish  any- 
thing he  pleases,  but  he  is  liai)le  foi- the  abuse 
of  this  liberty.  If  he  rloes  this  by  scandaliz- 
ins:  the  courts  of  his  countrv,  lie  is  liable  to 
be  punished  for  contempt.  If  he  slanders  his 
fellow-men,  he  is  liable  to  a  criminal  prosecu- 
tion for  libel,  and  to  i-esi)ond,  civilly,  in  dam- 
ages foi'  the  injui'v  he  does  to  the  individual. 
In  othei-  words,  the  abuse  of  the  privilege 
consists  principall}'  in  not  telling  the  truth. 
It    is  no  new  claim  that   newspapers  have  a 


23i)       TIIK    LAW    OF    CONSTRUCTIVE    CONTEMPT. 

g-rcatiT  privilege  than  the  ordinary  citizen. 
This  is  a  grave  error.  In  King  v.  Root,  4 
Wend.  113,  21  Am.  Dec.  102,  Chancellor 
Walworth  said:  "It  has  been  nrged  upon 
you  tiiat  conductors  of  the  public  press  are 
entitled  to  peculiar  indulgences,  and  have 
special  rights  and  privileges.  The  law  recog- 
nizes no  such  peculiar  rights,  privileges, 
or  claims  to  indulgence.  They  have  no 
i-ights  but  such  as  are  common  to  ail. 
They  have  just  the  same  rights  that  the  rest 
of  the  community  have,  and  no  moi-e.  They 
have  the  right  to  publish  the  truth,  but  no 
right  to  publish  falsehood  to  the  injury  of 
others  with  impunity."  And  in  Hotchkiss  v. 
Oliphant,  2  Hill,  510,  Chief  Justice  Nelson, 
speaking  foi"  the  Supreme  Court  of  New  York, 
said:  "It  is  made  a.  point  in  this  case,  and 
was  insisted  u|Jon  in  argument,  that  the  editor 
of  a  public  newspaper  is  at  Libert}''  to  copy  an 
item  of  news  fiom  another  paper,  giving  at 
the  same  time  his  authority,  without  subj^'ct- 
ing  himself  to  legal  responsibility,  however 
libelous  the  article  may  be,  unless  express 
malice  be  shown.  It  was  conceded  that  the 
law  did  not  and  ought  not  to  extend  a  similar 
indulgence  to  any  other  class  of  citizens;  but 
counsel  said  that  a  distinction  should  be  made 
in  favor  of  editors  on  the  ground  of  the  pe- 
culiarity of  their  occupation  ;  that  their  busi- 
ness was  to  disseminate  useful  knowledge 
among  the  people;  to  i)ublish  such  matters 
relating  to  the  current  events  of  the  day  hap- 
pening at  home  or   a!)road  as  fell   within  the 


TlIK    LAW    OF    CONSTKUCTHK    roNTKMI'T.        2.")7 

sphoro  of  tlic'ir  oI)servation,  aiul  as  tlic  public 
oiii-insity  01'  taste  dciriaiuled  ;  and  that  it  was 
iinpractical)le  foi*  tiioin  at  all  titnes  to  ascci-- 
tain  the  truth  or  falsehood  of  the  various 
statements  contained  in  otiier  jouinals.  AVe 
are  also  told  that,  if  the  law  were  not  thus 
iiidulg-ent,  some  legislative  relief  mig-lit  l»ecf)mc 
necessary  for  the  pi'otection  of  this  class  of 
citizens.  Undoubtedly,  if  it  be  desii-able  to 
l)ampei'  a  depi'aved  public  ap|)e(ite  or  taste  if 
there  be  any  such,  by  the  republication  of  all 
the  falsehoods  and  caluTimies  upon  private 
character  that  may  find  their  wa}'  into  the 
press,  to  give  encouragement  to  the  widest 
possible  circulation  of  these  vile  and  defama- 
tory pul)lications  by  protecting  the  retailei's 
of  them,  some  legislative  interference  will  be 
necessary,  for  no  countenance  can  be  found 
for  the  irresponsibility  claimed  in  the  common 
law.  That  reprobates  the  libeler,  whether 
author  or  publisher,  and  subjects  him  to  both 
civil  and  criminal  responsibility.  His  offense 
is  there  ranked  with  that  of  the  ivceivei-  of 
stolen  goods,  the  perjurei"  and  suborner  of 
perjui'y,  the  disturber  of  the  peace,  the  con- 
spirator, and  other  offenders  of  like  charac- 
^^,y      ¥:     ¥c     V:     rpi^^  ^^^  ^^^  pubHcatiou   is  an 

adoption  of  the  original  calumny,  which  must 
be  defended  in  the  same  way  as  if  invented 
b}' the  defendant.  The  i-epul)lication  assumes 
and  indorses  the  truth  of  the  chai'ge,  and, 
when  called  on  b}'  the  aggrieved  pai'ty,  the 
publishei-  should  be  held  strictly  to  the  pi'oof. 
If   he  chooses  to  become  the  indorser  an<l  re- 


238   THE  LAW  OF  CONSTRUCTIVE  CONTEMPT. 

taller  of  private  scandal,  without  taking  the 
trouble  of  inquiring  into  the  truth  of  what 
he  publishes,  there  is  no  ground  for  complaint 
if  the  law,  which  is  as  studious  to  protect  the 
character  as  the  property  of  the  citizen,  holds 
him  to  this  responsibility.  The  rule  is  not 
only  just  and  wise  in  itself,  but,  if  steadily  and 
inflexibl}^  adhered  to  and  applied  by  courts 
and  juries,  will  greatly  tend  to  the  promotion 
of  truth,  good  morals,  and  common  decency 
on  the  part  of  the  press,  by  inculcating  caution 
and  inquiry  into  the  truth  of  chai'ges  against 
private  character  before  they  are  published 
and  circulated  throughout  the  community." 
Time  was,  vvhen,  if  any  citizen  or  news- 
paper insulted  or  slandered  oi*  maligned  a  citi- 
zen, the  injured  party  demanded  satisfaction 
according  to  the  code  of  honor,  and,  if  this 
was  refused,  treated  the  offender  as  a  mad 
dog  is  usually  dealt  with.  It  is  worthy  of 
notice  that  in  those  days  every  one  was  care- 
ful to  tell  the  truth  about  his  fellow-men,  and 
equally  careful  to  avoid  scandalizing  them. 
But  even  in  those  days  there  were  occasional 
breaches  of  decency  in  this  regard,  which 
were  promptly  dealt  with.  A  sentiment,  how- 
ever, grew  up  that  such  a  method  settled 
nothing;  that  the  innocent  party  was  as  liable 
to  be  removed  or  hurt  as  the  guilty,  and  that 
the  result  did  not  show  which  told  the  truth. 
Thus  public  sentiment  discouraged,  if  it  did 
not  forbid,  such  a  method  of  settling  such 
grievances,  and' it  was  insisted  that  the  rem- 
edies   afforded    by    the  laws  were  ample  to 


TlIK    LAW     OF    CONSTRUCTIVE    CONTEMPT.       239 

properly  liandle  all  such  matters,  and  heiiee 
that  any  one  ag<^rievL'(i  must  not  take  the  law 
in  his  own  hands,  but  must  let  the  c(;urts 
settle  it.  So  the  old  methtKl  has  become 
nearly  obsolete;  but  even  now  it  is  occasion- 
ally resorted  to  when  the  offense  is  peculiarly 
aggravated,  and  so  indecent  that  it  is  impos- 
sible for  luimau  nature  to  stand  it. 

Now,  it  is  gravely  argued  by  libelers  that 
the  liberty  of  the  press  includes  a  right  to 
scandalize  courts,  to  lil)el  and  slander  and 
utter  the  most  llagi-ant  and  indecent  calumnies 
about  public  officers,  and  even  pi'ivate  citi- 
xens,  and  to  invade  the  sanctuaries  of  the 
churches,  tiie  temples  of  justice,  or  the  sacred- 
ness  of  the  home  and  the  private  family,  and 
without  any  good  motive,  or  for  any  public 
purpose,  to  publish  the  most  cruel,  false,  and 
scandalous  articles  concerning  them.  And 
there  ai'e  nevvs[)a[)ers  that  have  so  far  mis- 
conceived their  proper  functions,  or  been  mis- 
guided by  other  considerations,  as  to  indulge 
in  such  practices.  And  there  is  always  a  class 
of  moral  perverts  and  degenerates  in  every 
community  who  feed  their  morbid  appetites 
upon  such  scandals,  and  rejoice  at  the  injuiy 
thus  done  to  those  who  are  so  infinitely  their 
superiors  that  they  are  not  worthy  to  fasten 
the  latchet  of  their  shoes.  But,  to  the  credit 
of  the  newspaper  profession,  it  is  due  to  here 
make  a  record  of  the  fact  that  the  gi'eat  ma- 
jority of  the  members  of  that  profession  do 
not  approve  or  sanction  such  practices  or  such 
"yellow"  journalism,   but  have  a  proper  ap- 


240       THE    LAW    OF    COXSTKUCTIVE    CONTEMPT. 

preeiation  of  the  rights  niul  piu-posos  and  func- 
tions of  a  newspapei-,  and  deplore  the  fact  that 
8iich  unworthy  persons  are  engao'ed  in  thepi'o- 
fession,  as  much  as  lawyers  deplore  the  black 
sheep  that  will  sometimes  creep  into  the  fold. 
The  contrast  between  the  fwo  classes  marks 
the  difference  between  res[)ectability  and  in- 
decency, between  intelligence  and  ignorance, 
between  the  law  abiding,  patriotic  citizen  and 
the  Ishmaelite — the  assassin  of  character  for 
the  accumulation  of  lucre.  The  g»-eat  body 
of  the  people  condemn  such  practices  and  such 
miscreants,  and  the  courts  would  deserve  con- 
demnation and  abolition  if  they  did  not  vigor- 
ously and  fearlessly  punish  such  offenders. 
Such  practices  are  an  abuse  of  the  liberty  of 
the  press,  and  if  the  slander  relates  to  the 
courts  it  concerns  the  whole  public,  and  is 
therefore  punishable  summarily  as  a  criminal 
contempt;  and  if  it  concerns  an  individual  it 
is  punishable  civilly  and  criminally  as  for  a 
libel. 

There  is  no  species  of  property  and  no 
class  of  people  that  need  the  protection  of 
the  law  as  much  as  newspapers  and  editors, 
and  they  would  feel  the  loss  of  such  protec- 
tion more  speedily  and  more  acutely  than 
any  one  else.  Self-interest  should,  therefore, 
induce  them  not  to  impair  the  power  or  au- 
thority of  the  courts,  and  not  to  inculcate  a 
feeling  of  disrespect  or  want  of  confidence  in 
the  courts.  Curran  called  the  liberty  of  the 
press  a  "  sacred  palladium."  But  without 
the  shield  and  the  bulwark  of  the  law  and  the 


TIIK    LAW    OF    CONSTUUCTIVK    CONTKMIT.         241 

courts,  even  the  Goddess  Pallas  would  be 
unaljle  to  i)rotect  the  press,  or  to  preserve 
the  ri<^hts  and  safety  and  peace  of  the  peo- 
ple. Without  the  law  and  the  courts,  chaos 
and  anarchy  would  prevail.  There  would  be 
no  protection  for  life,  liberty,  propei'ty,  or 
chai-acter.  He,  therefore,  who  seeks  to  de- 
sti'oy  the  authority  of  the  courts,  invites  an- 
archy, and  sows  seed  for  his  own  undoing. 
It  is  the  liberty  of  the  press  that  is  guaran- 
tied, not  the  licentiousness.  It  is  the  right  to 
speak  the  truth,  not  the  right  to  bear  false 
witness  against  your  neighbor.  Every  citi- 
zen has  a  constitutional  right  to  the  enjoy- 
ment of  his  character  as  well  as  to  the  own- 
ership of  his  property,  and  this  right  is  as 
sacred  as  the  liberty  of  the  press.  In  King 
V.  Hurdett,  4  Barn.  &  Aid.  95,  it  was  said: 
"  The  liberty  of  the  press  cannot  impute  crim- 
inal conduct  to  others  without  violating  the 
right  of  the  character,  and  that  right  can 
only  be  attacked  in  a  court  of  justice,  vvhei-e 
the  party  attacked  has  a  fair  oi)portunity  of 
defending  himself.  Where  vitHperation  he- 
ginSy  the  liberty  of  the  press  ends.'''  (The 
italics  ai-e  added.)  It  must  be  clearly  undei- 
stood  and  always  borne  in  mind  that  there  is 
a  vast  difference  between  criticism  or  fair 
comment  on  the  one  side  and  defamation  on 
the  other.  Odgers  on  Libel  <fc  Slander,  page 
35,  says :  "Every  one  of  the  public  is  en- 
titled to  pass  an  o{)inion  on  everything  which 
in  any  way  invites  pr.blic  attention.  Those 
of  the  public  whose  opinion  on   such  matters 

IG- 


242       Tllli:    LAW    OF    CONSTKUCTIYE    CONTEMPT. 

is  l)eKt  worth  hnving  are  called  'critics.' 
From  their  character,  ability,  oi"  experience 
they  can  judge  with  precinion  (which  is  the 
true  meaning  of  the  word  'criticise'),  and 
their  opinion,  therefore,  is  entitled  to  i"e- 
spect.  Their  criticism  may  be  commenda- 
tory, hut  it  is,  perhaps,  moi'e  generally  un- 
favoral)le.  Still,  so  long  as  it  continues  to 
be  criticism  at  all,  it  is  not  defamatory. 
Whei'e  defamation  commences  true  criti- 
cism ends.  True  criticism  differs  from  def- 
amation in  the  following  particulars:  (1) 
Criticism  deals  only*  with  such  things  as  in- 
vite pul)lic  attention  or  call  foi"  j)ublic  com- 
ment. (2)  Criticism  never  attacks  the  indi- 
vidual, but  only  his  woi-k.  Such  work  may 
be  either  the  polic}'  of  the  govei'ument,  the 
action  of  a  member  of  Pai'liament,  a  public 
entertainment,  a  book  published,  or  a  pic- 
ture exhibited.  In  every  case  the  attack  is 
on  a  man's  acts,  or  on  some  thing,  and  not 
upon  the  man  himself.  A  true  critic  never 
indulges  in  personalities.  (3)  True  criticism 
never  unputes  or  insinuates  dishonorable  mo- 
tives (unless  justice  absolutely  requires  it, 
and  then  only  on  the  clearest  proofs):  (4) 
The  critic  nevei-  takes  advantage  of  the  oc- 
casion to  gratify  private  malice,  or  to  attain 
any  other  objict  beyond  the  fair  discussion 
of  matters  .  of  public  interest,  and  the  judi- 
cious guidance  of  thepublic  taste."  The  same 
author  quotes  with  ap|)roval  the  language  of 
Huddk'Ston,  B.,  in  Whistler  v.  Ruskin,  where 
he  says:      "A  critic  must  confine   himself  to 


TllK     LAW     OF    ( ONS'IlircTIN  K    CONTEMI'T.        243 

criticisiM,  and  not  iiiakc  it  the  veil  for  per- 
sonal censure,  noi'  allow  himself  to  inn  int(j 
reckless  and  unfair  attacks  merely  foi-  (lie 
love  of  exercising  his  power  of  denunciation." 
And  the  authoi-  adds  (page  88)  :  "  But 
all  comments  must  he  fair  and  honest.  Mat- 
ters of  puhTu^  intei'est  must  he  discussed  tem- 
perately .  Wicked  and  corrupt  motives  shout d 
never  be  wantonly  assigned  [The  italics 
are  added.]  And  it  will  he  no  defense  that 
the  writei ,  at  the  time  he  wrote,  honestly 
believed  in  the  truth  of  the  charges  he 
was  making,  if  such  charges  he  made  reck- 
lessly, unreasonably,  and  without  any  foun- 
dation in  fact.  Some  people  ai-e  very  cred- 
ulous, especially  in  politics,  and  can  readily 
believe  any  evil  of  theii'  opponents.  There 
must,  thei'cfore,  be  some  foundation  in  fact 
tov'  the  charges  made.  The  wM-ittM-  must 
bring  to  his  task  some  degree  of  inoderation 
and  judgment."  The  author  also  quotes 
with  ai)proval  the  language  of  Cockburn,  C. 
J.,  in  Campbell  v.  Spotteswoode,  32  L.  J.  Q. 
B.  199:  "A  line  must  be  drawn  between 
criticism  upon  public  conduct  and  the  im|)U- 
tation  of  motives  by  which  that  conduct  may 
be  8U[)|)0sed  to  be  actuated.  One  man  has 
no  right  to  impute  to  another,  whose  conduct 
may  be  fairly  open  to  ridicule  or  disapproba- 
tion, base,  sordid,  and  wicked  motives,  unless 
there  is  so  much  ground  for  the  imputation 
that  a  jury  shall  find,  not  only  that  he  had 
an  honi-st  belief  in  the  truth  of  his  state- 
ments, but  that  his  belief  was  not  without 
foundation." 


244       TJIK    LAW    OF    CONSTKUCTIVK    CONTKMPT. 

PattTson  on  Liberty  of  Press,  etc.,  p.  131, 
says:  "  While,  theiefore,  it  is  lawful  for  any 
one  to  publish  a  i-ei)oi"t  of  a  proceeding  in  a 
court  of  justice,  still  this  must  be  a  fail-  and 
authentic  report  of  what  happened.  If  the 
report  is  mixed  up  with  comments  showing 
an  animus  agains*:  a  party,  and  giving  an  un- 
fair impression,  the  publishei-  then  ceases  to 
have  the  benefit  of  this  absolute  protection." 
The  author  is  discussing  the  liberty  of  the 
press. 

The  courts  of  other  States  have  held  that 
it  is  libelous  to  chai'ge  an  officer  with  having 
taken  a  bribe,  or  with  corruption,  or  want  of 
integrity.  In  such  cases  the  publishei*  must 
stand  ready  to  prove  the  truth  of  his  charges, 
or  he  will  not  go  unwhipped  of  justice. 
Hamilton  v.  Eno,  81  N.  Y.  116;  AV'ilson  v. 
:N'oonan,  35  Wis.  321;  Gove  v.  Blethen,  21 
Minn.  80;  18  Am.  Eep.  380;  Russell  v. 
Anthony,  21  Kan.  450;  20  Am.  Rep.  436; 
Littlejohn  v.  Greeley,  13  Abb.  Prac.  41; 
Bole  V.  Yan  Renselaer,  1  Johns.  Cas.  330 ; 
m^gley  V.  Farrow.  60  Md.  158;  45  Am.  Rep. 
715;  Xeeb  v.  Hope,  111  Pa.  145;  2  Atl. 
568. 

It  is  pertinent  and  profitable  to  set  out  a 
few  of  the  cases  wherein  the  courts  of  other 
jurisdictions  have  summarily  punished  per- 
sons as  for  a  criminal  contempt  on  account 
of  publications  which  were  calculated  to 
brijig  public  odium  upon  the  court. 

The  case  of  Respublica  v.  Oswald,  1  Dall. 
319.1  L.Ed.  155,  has  already  been  referred  to. 


TllK    LAW    Ul-    (■(JN.STKL."(  TIN  K    CONTKMIT.       24.') 

Ill  R('s|)iil)lic;i  V.  Passinore,  3  Ycates,  441, 
2  Am.  Dec.  :]SS,  the  dcfendimt  was  fiiiefl  $50 
and  sent  to  jail  for  30  days  for  publishing  an 
aiticle  I'cllecting-  iii)on  one  of  the  parties  to  a 
pending  cause,  which  tended  to  interfei'e  with 
the  course  of  justice. 

In  People  v.  Freer,  1  Caines,  518,  the  de- 
fendant published,  in  the  Ulster  Gazette,  cer- 
tain comments  concerning  a  trial  that  had 
occurred  in  court,  that  were  calculated  to 
piejudice  and  influence  the  public  mind 
against  the  court,  and  to  intimidate  and  ii>- 
tluence  the  court  in  deciding  a  motion  for  a 
new  trial  that  was  then  pending.  He  was 
punished  for  contempt.  The  court  said: 
"  Publications  scandalizing  the  court,  or  in- 
tending unduly  to  influence  or  overawe  their 
deliberations,  are  attempts  which  they  are 
authorized  to  punish  by  attachment;  and, 
indeed,  it  is  essential  to  their  dignity  of  char- 
acter, their  utility  and  independence,  that 
they  should  possess  and  exercise  this  au- 
thority." 

In  Tenney's  Case,  23  X.  H.  1(32,  the  de- 
fendant, who  had  no  interest  in  a  pending- 
action,  except  that  his  son  had  sued  one  of 
the  defendants  and  had  lost,  caused  copies  of 
the  petition  in  the  [)ending  action,  which 
contained  serions  charges  against  tlu'  defend- 
ants, to  be  published  and  cii'culated  among 
persons  with  whom  the  defendants  had  busi- 
ness relations,  in  which  he  said  he  could  stoi) 
the  suit  if  the  defendants  would  pay  him 
$1,000— that   being  the   amount    he   said   he 


246     THE  LAW  or  constructive  contempt. 

liad  lost  by  bis  son's  unsncccssfnl  suit  a_i>-ainst 
tbe  defendants.  It  was  licld  tbat  "f^ucli  con- 
duct tended  to  obstruct  tbe  free  coui'se  of 
justice,  and  was  a  contemi)t  of  court,"  and  a 
rul<'  in  attacinnent  was  granted. 

For  [)ubliHbing'  an  account  of  a  tiial  for 
treason  wben  tbe  coui't  bad  forbidden  any 
pubbcation  of  it,  because  bke  cases  were 
pending-  against  otber  persons,  whose  rights 
might  be  affected,  the  defendant,  as  editor 
of  tbe  Observer,  was  fined  c€500  by  tbe  Court 
of  King's  Bench  in  England  in  1821.  King 
V.  Clement,  4  Barn.  &  Aid.  218. 

In  Sturoc's  Case,  48  N.  H.  428,  97  Am. 
Dec.  626,  the  defendant,  a  membei"  of  the 
bar,  was  punished  as  for  a  criminal  contempt 
for  publishing  a  communication  in  a  newspa- 
per respecting  a  prosecution  under  the  liquor 
laws  of  that  State,  which  tended  to  prejudice 
the  minds  of  tbe  people  against  the  case. 

In  State  v.  Morrill,  16  Ark.  384,  the  de- 
fendant, as  editor  of  tbe  Des  Arc  Citizen^ 
published  an  article  in  which,  b}^  implication, 
he  charged  the  judges  of  the  Supreme  Court 
of  Ail^ansas  with  having  been  bribed  to  ren- 
der a  certain  decision  in  a  habeas  corpus  case 
that  bad  been  finally  decided  by  that  court. 
Upon  tbe  publication  being  called  to  the  at- 
tention of  the  court  by  a  communication  ad- 
dressed to  one  of  the  judges  of  the  court  by 
a  member  of  the  bar,  the  court  issued  a  rule 
to  show  cause.  The  defendant  pleaded  the' 
statute  of  that  State  prescribing  that  in 
certain    instances,  and    no  others,    the  court 


TllK    LAW    OF    CONSTKUCTIVK    CUMICMI'T.        ^47 


could  punish   for  eoiitcuipt .     It  was  admitted 
that     llio    ;ic't     coinphiiiR'^l     of     did     not     fall 
within   tlu-   terms  of    tlic  statute,   and   it   was 
(daimed    that    the    court    had     no    power     to 
l)nui8h  for  any  other  kind  of  a  contemi)t  than 
that    specified    in   the    statute.      The  statute 
was,  in   ipsissimi^s   ver'ois,  exactly  like  section 
161G,    Kev.   St.    Mo.   1899.     It    will    he    ob- 
served   that  the  charge    was  practically  the 
same     in    that     case    as    in   the    case   at   bar, 
and  that    the. statute  relied  on   in  that    case 
is   exactly    like  our  statute.     The  court  held 
the  statute  to   be   beyond  the   power    of  the 
Legislature  to  enact,  and   that  the  power  to 
punish   as    for  a  criminal    contempt  was    in- 
herent in  the  court.      The  court  also  held,  as 
stated    in  the   headnote,  that:   "  Any  citizen 
has  a  right  to  comment  upon  the  proceedings 
and  decisions  of  this  court,   to  discuss  their 
correctness,  and     the   fitness  or  unfitness  of 
the  judges    for  their  stations,  and  the   fidel- 
ity with    which    they  perform  the  important 
trusts  reposed  in  them;   but  he  .has  no  right, 
under    the    seventh     section  of    the    Bill  of 
Rights,   to  attempt,  by  libelous  publications, 
to  degrade  the  tribunal,  etc.     Such  publica- 
tions    are     an     abuse  of    the    liberty  of  the 
press,  for  which   he   is  responsible  "      It  wa-i 
also  objected   that  it  was  not   a  contempt  of 
court,   because     it     did     not  relate  to  a  case 
then   pending,   and  therefore  the  rights  of  no 
party   litigant   were  affected   by  it.      But  the 
court  referred  to  the  adjudications  —  particu- 
larly   CommonweaUh    v.   Dandridge,  2  Ya. 


248         THK    LAW    OK    CONSTKUCTIVK    CONTEMPT. 

Cas.  409,  pi'oseiitly  to  be  cited  —  and  said  : 
"  The  case  above  cited  (and  many  more 
might  be  cited  if  deemed  at  all  necessary) 
abundantly  show  that  by  the  common  law 
courts  possessed  the  power  to  ])unish  as  for 
contempt  libelous  publications  of  the  char- 
acter of  the  one  under  consideration,  upon 
their  ])roceedings,  pending  or  past,  upon  the 
ground  that  they  tended  to  degrade  the  tri- 
bunals, destroy  public  confidence  and  respect 
for  their  judgments  and  decrees,  so  essentially 
necessary  to  the  good  order  and  well-being  of 
society,  and  most  effectually  obstructed  the 
free  course  of  justice."  Accordingly,  the 
defendant  was  punished  summarily  as  for  a 
criminal  contempt. 

In  Commonwealth  v.  Dandridge,  2  Va. 
Cas.  409,  the  court  at  a  prior  term  had  de- 
cided a  case  against  the  defendant.  He  met 
the  judge  at  the  door  of  the  courthouse,  be- 
fore the  opening  of  court  for  the  next  term, 
and  grossly  insulted  him,  charging  him  with 
corruption  and  co\vardice  in  the  decision  of 
his  case.  He  was  cited  for  contempt,  and 
it  was  objected  that  the  act  did  not  relate  to  a 
pending  cause.  The  case  was  transferred  to 
the  general  court  of  the  State,  and  that  court, 
speaking'  to  this  point,  said  :  "  Upon  this  part 
of  the  subject,  and  in  reference  to  cases  which 
have  an  indirect  bearing  on  the  present  ques- 
tion, a  distinction  is  attempted  for  which  I 
can  find  neither  reason  nor  authority.  It  is 
said  that  the  attaching  power  may  be  exercised 
for  contempts  touching  the   prospective   con- 


TlIK    LAW    ()!■    CONSTKLCm  K    CONTHMrT.       249 

duct  of  till'  jihIoi-c,  hut  not  so  far  as  toufli  his 
past  con<hict.  lu  leason  I  sec  l)iit  one  piH'tcMise 
for  this  distinction.  Threats  and  menaces  of 
insult  or  injui'y  to  a  jud<^e  in  case  he  shall 
render  a  certain  judgment  may  he  considered 
asim[)airing  his  independence  andlm|)artiality 
in  the  j)artieuhii'  ease  to  wliieh  tlie  tliivats  re- 
fer. And  if  the  power  of  punishment  sto[)  here, 
a  curious  consequence  may  ensue.  A  man 
may  be  attached  foi'  tlireateniiig  to  do  that 
for  whicii  he  could  not  be  attached  when  actu- 
ally done.  One  says  of  a  judge,  'If  he  render 
a  certain  judgment  against  me,  I  will  insult 
or  beat  him.'  For  this  he  may  be  attached. 
But  if  (the  judgment  having  been  rendered) 
this  insult  be  actually  offei-ed,  an  attachment 
no  longer  lies,  because  the  contempt  is  in  re- 
lation to  the  past  conduct  of  the  judge,  and 
to  a  case  no  longer  pending.  A  recur!"ence 
to  original  princi[)les  —  the  only  true  test — • 
by  demonstrating  that  the  weight,  authority, 
and  independence  of  the  court  may  be  equally 
assailed  either  way,  will  i)i'ove  that  this  dis- 
tinction is  merely  ideal." 

In  the  case  of  In  I'c  Pi-yor,  18  Kan.  72,  26 
Am.  Rep.  747,  the  court  finally  decided  a  case, 
and  the  attorney  for  the  losing  party  wrote  a 
letter  to  the  judge,  saying  the  decision  "  is 
directly  contrary  to  every  piinciple  of  law 
govei'uing  injunctions,  and  everybody  knows 
it,  I  believe.  *  *  *  It  is  my  desire  that 
no  such  decisions  or  ordei's  shall  stand  unre- 
versed in  any  couit  I  piactice  in."  Thecoui't 
held    that   it   was  a   criminal   eontem{)t.    fined 


250       THE    LAW    OF    CONSTRUCTIVE    CONTEMPT. 

him  |>50,  and  suspended  him  ffom  practice 
until  the  fine  was  paid,  and  the  Supreme 
Court  affirmed  the  judgment. 

In  the  case  of  In  re  Woolley,  11  Bush,  95, 
the  defcncJant  as  attorney  tor  the  losing  l)arty, 
filed  a  motion  for  rehearing,  in  which  in  a 
supercilious  and  dogmatic  style,  he  charged 
"  that  the  court  had  overlooked  the  facts  of 
the  case;  that  it  had  assumed  facts  having 
no  phice  in  the  jiroof,  and  ignored  others 
which  stood  out  on  every  page  of  the  record  ; 
that  it  was  careless  and  indifferent  to  the 
riglits  of  a  litigant,  and  that  the  result  of 
this  carelessness  and  indiffei'ence  was  a  ruin- 
ous, disastrous,  and  unjust  judgment  against 
a  party  wholly  innocent  of  all  offense."  The 
court  pronounced  the  offense  to  be  "  of  a  na- 
ture too  gi'ave  to  be  silently  overlooked." 
The  defendant  was  cited  for  contempt,  and 
disclaimed,  under  oath,  any  intention  to  coiu- 
mit  a  contempt,  and  in  consideration  of  this 
condition  his  fine  was  assessed  at  the  nominal 
sum  of  |30. 

In  People  v.  Wilson,  64  III.  195,  16  Am. 
Rep.  528,  the  defendant,  the  editor  of  the 
Chicago  JEvening  Jourtial,\}uhY\Hhed,  in  1872, 
an  article  with  reference  to  a  case  then  pend- 
ing in  the  Supreme  Court,  in  which  he  re- 
flected on  the  action  of  the  court  in  thai  case, 
impeached  its  integrity,  and  sought  to  intimi- 
date the  action  of  the  court  by  thi-eat  of  i)<)p- 
nlar  clamor.  He  was  cited  for  criminal  con- 
tempt, and  fined  $100.  In  this  case  the  court 
adopted  the  i*ule  laid  down  by  Bishop's  Crim- 


Tin:    l.AU     Of    CONSTia CTIVK    (ONTKMIT.         251 

inal  Law,  ^  216.  wherein  it  is  sail  :  "Ae- 
eorfling-  to  the  <^enei'al  doctiine,  any  publiea- 
tion,  whether  by  parties  or  strangers,  which 
concerns  a  case  pending  in  (-(jnrt,  and  lias  a 
tendency  to  piejndice  the  public  conceiiiing 
its  merits,  and  to  corfuj)!  the  administration 
of  jnstice,  or  which  ivlkcts  on  the  tribunal 
or  its  proceedings,  or  on  the  parties,  the  ju- 
rors, the  witnesses,  or  the  counsel,  may  be 
visited  as  a  contempt." 

In  the  case  of  In  re  Chadwick  (Mich.j,  (37 
N.  "W.  1071,  the  defendant,  as  attorney  for 
the  losing  i)arty,  in  a  case  that  had  hvvu  de- 
cided by  tiie  Supreme  Court  of  Michigan, 
wrote  and  pui)lished,  in  1896,  an  article  in 
the  Port  Ilui-on  JVeivs,  criticising  tlie  decree, 
and  in  it  charged  the  judge  with  unfairness 
and  improper  conrluct.  The  Supreme  Court 
of  Michigan  held  it  to  be  a  contempt  of  court, 
and  that  the  j)ower  to  punish  for  contem[)t 
existed  as  well  aftei*  a  case  was  finally  dis- 
posed of  as  where  it  was  still  pending.  The 
attachment  was  issued  in  this  case  upon  a 
petition  of  the  members  of  the  bar  infoi'ming 
the  court  of  the  contempt. 

In  Fishi)aek  v.  State  (Ind.  Sup.),  'SO  N.  E. 
1088,  the  defendant,  as  editor  of  the  Terre 
Haute  Express,  published,  in  1892,  a  certain 
article  I'efiecting  ujjou  the  gi'and  jury,  the 
judge  of  the  circuit  coui't,  the  [)rosecuting 
attoi'uey,  and  the  cit}'  engineer,  and  casting- 
doubt  uj)on  their  integi'ity  and  honesty  with 
respect  to  the  investigation  and  punishment 
of    certain    street    im[)i-ovement    conti'actors. 


252        THE    LAW    OF    CONSTRUCTIVE    CONTEMPT, 

The  defendant  denied  any  intention  to  com- 
mit a  contempt.  It  was  held  that,  where  a 
matter  was  hbelons  per  se,  the  denial  of  the 
defendant  that  he  intended  to  commit  a  con- 
tempt would  not  avail  him,  but,  if  the  article 
was  not  pel'  se  libelous,  but  could  be  made  so 
only  by  innuendo,  the  defendant  would  be 
dischai'gecl  upon  showing  that  he  intended  no 
contempt. 

In  People  ex  rel.  Conner  v.  Stapleton 
(Colo.  Sup.),  33  Pac.  167,  23  L.  R.  A.  787, 
William  Stapleton  and  Kemp  G.  Cooper, 
editors  of  the  Denver  Republican^  were  cited 
for  contempt  in  publisiiing,  in  1893,  an  article 
in  the  paper  "  implying  that  the  Supreme 
Court  has  been  induced  by  improper  influences 
to  delay  i-endering  a  decision  "  in  a  certain 
cause.  The  court  said  of  the  article:  "It 
is  not  mei'ely  a  private  wrong  against  the 
rights  of  litigants  and  the  judges.  It  is  a 
public  wrong,  a  crime  against  the  State,  to 
undertake  by  libel  or  slander  to  impair  con- 
fidence in  the  administration  of  justice.  That 
a  party  does  not  succeed  in  such  undertaking 
lessens  his  offense  only  in  degree."  The 
court  also  held  that  the  power  of  the  court  to 
punish  for  contempt  was  Jiot  limited  by  the 
provision  of  the  Code  which  attempted  to  de- 
fine the  cases  in  which  the  court  could  punish 
for  contempt,  and  also  held  that  the  liberty 
of  the  press  was  not  in  any  way  impaired  by 
the  court  punishing  as  for  a  contempt  the 
abuse  of  such  libeity. 

In  Cooper  v.  People  (Colo.  Sup.),  22 Pac. 


Tin:    LAW    OF    CUNSTULCTIVE    CU.NTK.Ml'T.  253 

790,  tlie  (IcfViulaiit,  as  editor  of  the*  DeiiVL-r 
Repuhlic'in,  pul)li.shed  in  1889  an  article  rc- 
rtectin<!^  upon  tlie  manner  in  wliicli  a  cei-tain 
pending  case  was  Ijeing  tried  l)y  the  couit. 
He  was  cited  for  contempt,  lie  alsodenianded 
u  trial  l)y  jury,  and  pleaded  the  liberty  of 
the  press.  A  jury  trial  was  denied  him.  And 
touching  his  other  plea,  the  court  said  :  '*  AVe 
woulfl  not  for  a  moment  sanction  any  con- 
traction of  the  freedom  of  the  press,  Uni- 
vei'sal  exi)erience  has  shown  that  such  free- 
dom is  necessary  to  the  perpetuation  of  our 
system  of'  government  in  its  integrity,  but 
this  freedom  does  not  license  unrestrained 
scandal.  By  a  subsequent  clause  of  the  same 
sentence  of  our  State  Constitution  in  which 
the  liberty  of  the  press  is  guarantied,  the  re- 
S|)onsibility  for  its  abuse  is  fixed.  With  us 
tlie  judiciary  is  elective,  and  every  citizen 
may  fully  and  fi'eely  discuss  the  fitness  or 
unfitness  of  all  candidates  for  the  positions  to 
which  they  aspire ;  criticise  freely  all  deci- 
sions rendered,  and  by  legitirnate  argument 
establish  their  soundness  or  unsoundness; 
comment  on  the  fidelity  or  infidelity  with 
which  judicial  officers  dischai'ge  their  duties; 
but  the  right  to  attem})t,  by  w^anton  defama- 
tion, to  prejudice  the  rights  of  litigants  in  a 
pending  cause,  degrade  the  ti'ibunal,  and  im- 
pede, embarrass,  or  corrui)t  that  due  admin- 
isti'ation  of  justice  which  is  so  essential  to 
good  government,  cannot  be  sanctioned." 
Id.,  loc.  cit.  799. 

Burke  v.   Territory  of  Oklahoma,  2    Okl. 


2o4     Tin:  law  of  constkuctive  contempt. 

499,  37  Pac.  829,  was  an  attaclnnent  for  (u>ii- 
tc!inpt  against  the  defendant  for  puljlisliing 
in  189i,  in  tlic  Oklahoma  Times- Journal^  an 
iii'ticle  respecting'  a  report  of  the  gi'and  jnry, 
where  tlie  question  was  whethi'r  it  should  be 
received  by  the  court  or  returned  to  the  grand 
jury,  and  in  wiiich  article  it  was  said  that  the 
judge's  cictions  indicated  that  he  intended  to 
withhold  the  report,  and  adding  that,  it*  the 
judge  pei'sisted  in  carrying  oul  such  intention, 
it  niiofht  be  cluiracterized  as  a  lla«>'rant  viola- 
tion  of  the  people's  rights,  and  that  the  action 
of  the  court  "  is  an  effort  to  browl)eat  the 
grand  jury,  an  effort  to  bend  the  gi'and  jm-y 
to  the  will  of  the  court,  and  a  serious  mat- 
ter." It  was  held  to  be  a  criminal  contempt, 
and  the  punishment  fixed  at  a  fine  of  $250 
and  imprisonment  for  10  days.  It  was  also 
held  that  the  Legislature  had  no  power  to 
limit  or  regulate  the  inherent  power  of  a 
court  to  punish  contempts,  and  that  in  con- 
tempt cases  the  defendant  was  not  entitled  to 
a  tiial  by  jui-y. 

In  Little  V.  State,  90  Ind.  338,  46  Am. 
Rep.  221,  decided  in  1883,  it  was  held  that 
the  power  of  the  courts  to  punish  for  con- 
tempt is  inherent,  and  cannot  be  prevented  or 
abridged  b}^  legislative  action,  and  that  an 
attempt  to  create  the  belief  that  a  juror  or 
officer  of  court  can  be  bi'ibed  is  a  contempt 
of  court.  See.  also,  Hawkins  v.  State,  125 
End.  570,  25  N.  E.  818. 

Other  instances  whei'e  public  otHceis  have 
resorted  to  a  private  action  of  libel  to  remedy 


TIIK    LAW    OF    CONSTRUCTIVE    CONTEMPT.  255 

tlie  wrong  can  l)e  foiiiHl  in  the  following 
cnses  :  Xet-l)  v.  Hope,  ]  1 1  Va.  Uf),  2  Atl.  568  ; 
NegU'v  V.  Farrow,  GO  Md.  158,  45  Am.  Kep. 
715;  Dole  V.  Van  liennsselaei',  1  Johns.  Cas. 
330;  Littlcjohn  v.  ''iieeley,  13  Ai)l).  IVae.  41  ; 
Russell  v.  Anthony,  21"  Kan.  450,  30  Am. 
Kep.  436;  Gove  v.  Blethen,  21  Minn.  80.  18 
Am.  Ke[).  380;  Wilson  v.  Xoonan,  35  Wis. 
321;  Hamilton  v.  Eno,  81  X.  Y.  116. 

Tims  at  gi-eat  pains  and  tedions  length  the 
cases  bearing  npon  the  matters  involved  in 
this  case  have  been  collected  and  disrested, 
with  the  puipose  and  to  the  end  that  the  peo- 
|)le  may  know  the  grounds  npon  whicii  the 
jndgment  in  this  case  rests,  and  so  that  all 
othei's  mav    know  the    law,   and  avoid   bein*'- 

.'•1.1  ^ 

guilty  of  like  offenses,  or  else  offend  know- 
ingly, and  hence  invite  inevitable  punish- 
ment. 

There  was  nothing  in  the  case  to  which  the 
ai'ticle  in  this  case  i-eferred  to  call  for  any 
such  scandalizing  of  the  court.  The  case 
arose  i)rior  to  the  fellow-servant  law.  It 
was  a  case  wherein  a  brakeman  was  injured 
])y  a  wi'eck  of  the  train  on  which  he  was 
working.  He  based  his  right  to  recover  ui)on 
the  ground  that  the  master  had  failed  to  fur- 
nish safe  ap[)liances  with  which  to  do  the 
work,  in  consequence  of  which  the  injury 
was  received.  The  unsafe  appliance  was  al- 
leged to  be  a  freight  car  that  had  unsafe  sills, 
which  w^ere  so  rotten  that  the  car  broke  down 
from  its  own  infirmity  while  still  on  the 
ti'ack.      The  defense   was  that  the  wreck   was 


25(j       THE    LAW    OF    CONSTRUCTIVK    CONTEMPT. 

caused  by  tlu'  forewheels  of  tlie  alleged  un- 
safe car  jumping  the  track,  and  that  the  car 
was  whole  when  it  left  the  track,  and  broke 
afterwards,  and  hence  that  the  injury  was 
caused  by  a  risk  which  the  plaintiff  assumed 
when  he  entered  the  master's  service,  and 
not  by  any  negligence  of  the  master  in  fur- 
nishing the  servant  unsafe  appliances,  A  ma- 
jority of  the  court  was  of  the  opinion  that 
there  .was  absolutely  no  evidence  whatever  to 
support  the  plaintiff's  case,  while  the  minority 
of  the  court  was  of  opinion  that  there  was 
such  evidence,  or  at  least  enough  thereof  to 
take  the  case  to  the  jury.  No  one  believed 
or  dared  to  charge  another  with  dishonesty  of 
opinion  or  action,  and  there  was  no  foundation 
in  fact  and  in  ti'uth  for  any  such  chai'ge. 
There  was  therefore  no  legal  justification  or 
excuse  for  the  article  that  was  published  by 
the  defendant.  He  did  not  dai-e  attempt  to 
prove  or  claim  that  it  was  true,  but  stood  mute 
as  to  that,  and  sought  to  escape  punishment 
on  other  gi'ounds  which  were  untenable. 
He  was  therefore  guilty  of  malice.  He 
abused  the  liberty  of  the  press  and  made  him- 
self liable  therefor.  Let  the  honest,  fair- 
minded,  patriotic  people  of  this  State  say 
whether  or  not  it  was  not  the  duty  of  the 
court  to  punish  him.  The  courts  of  this  State 
have  been  conservative  in  the  extreme,  and 
forbearing  to  a  fault.  They  have  overlooked 
remarks  concerning  their  acts,  from  lawyers 
and  laymen,  that  were  improper  and  outside 
of  the  pale  of  the  law,  preferring,  if  possible, 


THE    LAW    OF    CONSTKUfTIVK    CONTEMI»T.         257 

to  atti'lbutc  the  offt'n^>e  to  the  zeal  of  counsel 
or  the  excitement  of  the  laymen,  incident  to 
disappointment  of  personal  hopes  and  ambi- 
tions. They  have  been  considerate  of  the 
feelings  and  chai'actei-  of  otheis,  and  have 
many  times  abstained  from  the  use  of  strong- 
language,  under  ti'ying  provocation,  in  decid- 
ing cases.  And  it  was  proper  to  do  so.  But 
the  protection  and  safety  of  life,  libert\%  prop- 
erty, and  charactei-,  the  jieace  of  society,  the 
proper  administration  of  justice,  and  even  the 
perpetuity  of  our  institutions  and  foi'in  of 
government,  imperatively  demand  that  every 
one  —  lawyer,  layman,  citizen,  stranger,  news- 
pa])er  man,  fi-iend  or  foe  —  shall  treat  the 
courts  w'ith  i)roper  I'espect ;  shall  not  attempt 
to  degrade  them,  or  impair  the  respect  of  the 
people,  or  destroy  the  faith  of  the  people  in 
them.  When  the  temples  of  justice  become 
polluted  or  are  not  kept  pure  and  clean,  the 
foundations  of  free  government  are  under- 
mined, and  the  institution  itself  thi'catened. 
The  people  have  no  fear  of  their  courts  abus- 
ing their  power  to  punish  for  contempt  or  in 
an}^  other  respect.  Alexander  Hamilton,  in 
advocating  the  adoption  of  the  provisions  of 
the  Federal  Constitution  relating  to  the  judi- 
ciary, said  :  '•  Whoever  attentively  considers 
the  diffei'ent  departments  of  power  must  per- 
ceive that,  in  a  government  in  which  they 
are  separated  from  each  other,  the  judiciary, 
from  the  nature  of  its  functions,  will  always 
be  the  least  dangerous  to  the  political  rights 
of  the  Constitution,  because  it  will  be  least  in 

17 


258   THE  LAW  OF  CONSTRUCTIVE  CONTEMPT. 

a  capacity  to  annoy  oi-  injni'c  them.  The  ex- 
ecutive not  only  dispenses  the  honors,  but 
holds  the  sword  of  the  community.  The 
Legislature  not  only  commands  the  purse, 
but  prescribes  the  rules  by  which  the  duties 
and  rights  of  every  citizen  are  to  be  regu- 
lated. The  judiciary,  on  the  contrary,  has 
no  influence  over  either  the  sword  or  the 
purse,  no  direction  either  of  the  strength  or 
the  wealth  of  society,  and  can  take  no  active 
resolution  whatever.  It  may  be  truly  said  to 
have  neither  force  nor  will,  but  merely  judg- 
ment, and  must  ultimately  depend  upon  the 
aid  of  the  executive  arm  for  the  efficacious 
exercise  even  of  this  faculty."  Federalist, 
p.  355.  This  view  is  indoi'sed  by  Judge 
Story  in  his  treatise  on  the  Constitution 
(volume  2,  ith  Ed.,  p.  401).  It  may  well 
be  said  that  courts  depend,  for  their  exist- 
ence, usefulness,  and  efficacy,  upon  the  con- 
sent of  the  people.  The}'  must  depend,  first, 
upon  the  loyalty,  the  intelligence,  and  the 
counsel  of  the  bar  to  the  people ;  second, 
upon  the  faithful  communication  by  the 
high-minded,  intelligent,  and  truthful  mem- 
bers of  the  newspaper  profession  to  the 
reading  public,  of  their  acts  and  conduct 
and  judgments;  and,  third,  upon  the  wis- 
dom, the  honesty,  and  the  patriotism  and 
sense  of  justice  and  fair  play,  of  the  great 
body  of  the  people,  who  have  established 
these  institutions,  clothed  them  with  dignity 
and  ])Ower,  elected  the  judges  to  serve  them 
as  their  judicial  agents,  and  who  have  never 


TIIK    LAW    ()1-    (ONSTlirc  TIVE    fONTKMPT.       259 

failed,  in  tiic  loni^-  run,  to  distinguish  between 
right  and  wrong,  between  the  true  and  the 
false,  l)etween  the  faithful  and  the  faithless 
servants,  and  who  have  no  patience  with 
slanderers,  or  those  who  live  by  oi-  feed  upon 
slanders.  To  be  a  judge  over  such  people  is 
the  highest  honor  that  can  be  conferred  upon 
mortal  man.  To  be  a  judge,  without  such 
powers  as  a  judge,  wei'e  to  be  a  kicking  post 
for  every  madman,  a  butt  for  every  idiot  or 
knave,  and,  withal,  an  object  of  contempt  of 
all  men.  Unfortunately,  there  must  always 
be  a  losing  as  well  as  a  winningparty  to  every 
suit,  and  courts  must  needs  inflict  pain  as 
well  as  impart  joy  by  every  judgment  ren- 
dered. But  the  loser  to-day  may  be  the  win- 
ner in  another  case  to-morrow.  And  so,  if 
evei'y  loser  was  privileged  to  go  to  the  tavern 
and  "cuss  the  court"  to-day,  he  would  neces- 
saril}^  have  to  retract  his  reproaches  and  praise 
the  court  to-morrow,  when  he  is  a  winner. 
So  it  is  in  life.  It  is  nearlj'  always  true  that 
one  man's  loss  is  another  man's  gain.  But 
life  is  not  a  failure,  and  business  is  not  a 
fraud  and  to  be  condemned  for  such  reasons. 
'*  Do  unto  others  as  ye  would  others  should  do 
unto  you,"  do  not  bear  false  witness  against 
your  neighbor,  keej)  the  commandments,  obey 
the  laws,  tell  the  truth,  be  honest  to  your- 
self as  well  as  to  your  fellow-man,  bear  no 
malice,  but  judge  all  men  with  charity,  and 
life  will  be  sweeter  and  more  profitable,  and 
the  world  will  be  better,  and  your  neighbor's 
faults  will  not  appear  quite  so  unpardonable. 


260         THE    LAW    OF    CONSTRUCTIVE    CONTEMPT. 

In  this  spirit  the  judgment  in  this  case  was 
entered,   and   in   tliis  spirit  let  it  be  judged. 

What  is  herein  said  in  no  matter  what- 
ever conflicts  with  what  was  said  in  Marx  & 
Haas  Jeans  Clothing-  Company  v.  AVatson, 
168  Mo.  183,  67  S.  W.  397,  56  L.  E.  A.  951, 
90  Am.  St.  Rep.  410.  That  was  a  suit  in 
equity  to  enjoin  a  boycott,  and  it  was  held 
that  injunction  would  not  lie  to  i-estrain  the 
utterance  of  a  libel  or  slander,  or  to  restrain 
free  speech.  It  was  held  there,  as  it  is  hei-e, 
that  every  one  may  speak,  write  or  publish 
what  he  will,  but  is  responsible  for  the  abuse 
of  the  privileo-e.  168  Mo.  loc.  cit.  150,  67 
S.  W.  391,  56  L.  R.  A.  951,  90  Am.  St. 
Rep.  440.  That  case,  as  well  as  this,  holds 
that  the  courts  cannot  prevent  a  man  telling 
an  untruth  about  another,  but  their  power  is 
limited  to  punishing  him  if  he  does  so. 

For  these  reasons,  the  defendant  in  this 
case  was  adjudged  guilty  of  contempt. 

Robinson,  C.  J.,  and  Brace,  Gantt, 
Burgess,  Yalltant,  and  Fox,  JJ.,  concur. 


TABLE  OF  CASES  CITED. 


The  References  are  to  Paijes. 

The  cases  of  Lyou,  Ilaswell,  Cooi);!r  autl  Callentlar  under  the 
Seiiition  Law  of  1798  can  be  found  in  Wharton's  State  Trials, 
1  vol.,  anil  tlie  cases  of  Zenker,  McD>)U!^all,  Parks  and  Crosswell 
in  Hudson's  Journalism  in  the  United  States  and  Merrill's 
Newspaper  Libel. 


Almon,  Rex  v.,  42,  207. 
Able,  State  t'.,  47. 
Anderson,  State  v.,  80. 
Andrus  w.  Insurance  Co.,  223. 
Anthony,  Russell  v.,  244. 
Arnold,  Corar.  v.,  80,  211. 
Baciielder  v.  Moore,  80. 
Baldersou  v.  State,  80. 
Baenninghousen  Case,  38. 
Barnes  v.  Campbell,  223. 
Bates'  Case,  218. 
Becht,  State  v.,  218. 
Blethen,  Guve  v.,  244,  245. 
Bolte,  State  ex  rel.  v.,  213. 
Bradley,  State  v.,  73. 
Brick  Co.,  Ry.  Co.  v.,  62. 
Brownson  v.  Bruce,  223. 
Brown  v.  Buzan,  48. 
Bruce,  Bronson  v.,  223. 
Burdett,  King  v.,  241. 
Burke  v.  Territory,  218,  253. 
Buzan,  Brown  v  ,  48. 
Callendar,  U.  S.  v.,  loD. 
Caldwell,  Wells  v.  217. 
Campbell,  Barnes  u.,223. 
Campbell  v.  Spotteswoode,  243. 
Carter,  State  v.,  73. 
Cartwright'.s  Case,  200. 
Chase  Impeachment  Case,  1G7. 
Chadwick,  Rex  v.,  211,  251. 


Charlton,  Rex  v.,  205,  206,  208, 
209. 

Cheadle,  State  v.,  211. 

Clement,  King  v.,  24G. 

Cobbett,  Rex  v.,  192. 

Com.  V.  Arnold,  80,  211. 

Com.  V.  Dandridge,  248. 

Cooper,  U.  S.  v.,  149. 

Cooper  V.  People,  208,  252. 

Copelaud's  Case,  49,  66,  67. 

Court,   State  ex  rel.  v.,   71,   80» 
87. 

Crenshaw,  State  v.,  37,  215. 

Cromartir,  State  v.,  80. 

Crosswell  Case,  112. 

Crow  V.  State,  218. 

Dartmouth    College    v.    Wood- 
ward, 11,  223. 

Dandridge,  Com.  v.,  248. 

De  Castro  Case,  206,  218. 

Detroit  Free  Press,     McAllster 
v.,  223. 

District  Court,  Eilenbecker   r., 
217. 

District  Court,  Mandercheid  v., 
218. 

Dole  V.  VauRenselaer,  244,  255. 

Doty,  State  v.,  216. 

Dred  Scott  Case,  11. 

Duane,  Ilollingsworth    v  ,    216. 
(261) 


262 


TABLE    OF    CASES. 


The  References  are  to  Pages. 


Durein,  Stale  v.,  217. 
Edwards'  Case,  80. 
Eilenbecker  v.    District  Court, 

217. 
Eno,  Hamilton  v.,  2-14. 
Farrow,  Negley  v  ,  224,  244,  245. 
Fisiibacli  v.  State,  251. 
Foster's  Case,  81. 
Freer,  People  v.,  245. 
Frew,  State  v.,  69,  73,  201. 
Galloway,  Stale  v.,  80. 
Gandy  v.  State,  218. 
Gibbons  v.  Ogden,  212. 
Gorden  Case,  206. 
Gove  V.  Blethen,  244,  245. 
Grace  Case,  216,  217. 
Greeley,  Littlejohn  v.,  244,  255. 
Green  Co.  v.  Rose,  35,  67,  214. 
Hale  V.  State,  80,  211. 
Hamilton  v.  Eno,  244. 
Harrison,  State  v.,  33,  67,  214. 
Harrison,  Rex.  v.,  206. 
Hart  V.  Robinett,  218. 
Hawliins  v.  State,  254. 
Hawes  v.  Stale,  211. 
Haswell,  U.  S.  v.,  144. 
Heller  v.  Pulitzer  Pub.  Co.,  222. 
Hickey's  Case,  71,  80. 
Holmes,  Rutherford  v.,  80. 
Holman  v.  State,  211. 
HoUingsworth  v.  Duane,  216. 
Henderson,  McDonnell  v.,  217. 
Hope,  Neef  v.,  244,  255. 
Hotchkiss  V.  Oliphant,  230. 
Huntington  v.  McMahon,  217. 
Insular  Cases,  69. 
Insurance  Co.,  Andrus  v.,  223. 
Judges,  Loudon  v.,  80. 
Kaiser,  State  v.,  80. 
King  V.  Ohio  R.  R.  Co.,  218. 


King  V.  Root,  236. 
King  V.  Burdelt,  241. 
King  V.  Clement,  246. 
Lawless  Case,  169. 
Langdon  ■«.  Judges,  80. 
Lyon,  U.  S.  v.,  136. 
Ludden  v.  State,  218. 
Littlejohn  v.  Greeley,  244,  255. 
Little  V.  State,  253. 
McKean  Case,  24,  35,  115. 
McDougal  Case,  111. 
McMahon,  Huntington  y.,  217. 
McDonnell  v.  Henderson,  217. 
McAlister  v.  Detroit  Free  Press, 

223. 
Macgill  Case,  205. 
Matthews,  State  v.,  218. 
Mallory  v.  Pioneer   Press    Co., 

223. 
Marx  &   Haas  Clothing  Co.    u. 

Watson,  260. 
Middlebrook,  State  v  ,  80. 
Mitchell,  State  v.,  218. 
Moore,  Bichelder  v.,  80. 
Morrill,  State  v.,  73,  211,  246. 
Nash  Case,  149. 
Neef  V.  Hope,  244,  255 
Neel,  State  v.,  217,  255. 
Negley  v.  Farrow,  224,  244. 
Noonan,  Wilson  v  ,  244,  255. 
Oswald,  Respublica  v.,  78,  219, 

228,  244. 
Ogden,  Gibbons  v.,  212. 
Oliphant,  Hotchkiss  v.,  236. 
Ohio  R.  R.  Co  ,  King  v.,  218. 
Passmore,  Respublica  v.,  78,  245. 
Parks  Case,  110. 
Peck  Impeachment  Case,  31,35, 

169. 
Pioneer  Press  Co.,  Pratt  v.,  223. 


TAHLK    OF    CASES. 


2<;3 


Tlic  Referenc*' 

Ploueer  Press  Co.,  Mallory   v., 

223. 
People  V.  Freer,  245. 
People  V.  Wilson,  211,  250. 
People    V.    Stapleton,     80,    211, 

252. 
People  V.  Wyatt,  211. 
People,  Cooper  v.,  208,  252. 
People,  Storey  v.,  45,  70,  80. 
Pratt  V.  Pioneer  Pub.  Co.,  223. 
Pryor  Case,  249. 
Pulitzer    Pub.    Co.,    Heller  v., 

222. 
Publishing  Co.  Case,  80. 
Kex  V.  Harrison,  20G. 
Rex  V.  Cobbett,  192. 
Rex  V.  Chad  wick,  211,  251. 
Rex  V.  Charlton,   205,    20G,  208, 

209. 
Robinson's   Case,   69,     79,   200, 

211. 
Robinelt,  Hart  v.,  218. 
Robbins  Case,  249. 
Root,  King  v.,  236. 
Respublica  v    Oswald,  78,   219, 

228,  244. 
Respublica  r.  Passmore,  245. 
Rose,  Green  Co.  v.,  35,  67,  214. 
Rutherford  v.  Holmes,  80. 
Russell  V.  Anthony,  244. 
Ry.  Co.  V.  Brick  Co.,  G2. 
Shepherd  Case,  177. 
Shippeu  Case,  25,  43,  119. 
Skipworth    Case,    96,  206,  218, 

219. 
Shortridge  Case,  211 . 
Spotteswoode,      Campbell     v., 

243. 
Stapleton,    People    v.,  80,  211, 

252. 


s  are  to  Pages. 

State,  Fishbuck  v.,  251. 
I  State  V.  Little,  253. 
I  State  V.  Hawkins,  254. 

State  V.  Able,  47. 

State  V.  Anderson,  80. 

State,  BaUlerson  «.,  80. 
!  State  V.  Bradley,  73. 
'  State  V.  Carter,  73. 

State  V.  Crenshaw,  37,  215. 

Slate,  Crow  v.,  218 

State  V.  Dunham,  80. 
1  State  V.  Doty,  216. 
;  State  v.  Durein,  217. 

State  V.  Frew,  69,  73,  201. 
;  State,  Gaudy  v  ,  218. 
j  State,  Hale  v.,  80. 
j  State,  Worland  v  ,  211. 

State  V.  Harrison,  33,  67,  214. 
I  State,  Hawes  v.,  211. 

State,  Holman  v.,  211. 

State  V.  Kaiser,  80. 

State,  Ludden  v.,  218. 

State  u.  Matthews,  218. 

State  V.  Middlebrook,  80. 

State  V.  Mitchell,  218. 

State  ex  rel.  v.  Bolte,  213. 

State  ex  rel.  v.  Stone,  213. 

State  ex  rel.  v.  Court,  71,80,  87. 

Stone,  State  ex  rel.  v.,  213. 

St.  James  Evening  Post   Case, 
•204. 

Storey  v.  People,  45,  70,  80. 

Tuchiu's  Case,  192. 

Turner  Case,  207. 

Teiiney  Case,  245. 

Territory,  Burke  r.,  218,  253. 

U.  S.  r.  Callendar,  169. 

U.  S.  V.  Cooper,  149. 

U.  S.  V.  Haswell,  144. 
i  U.  S.  V.  Lyon,  136. 


264 


TABLE    OF    CASES. 


The  References  are  to  Pages. 


VanRenselaer,     Dole     v.,   244, 

245. 
Walker  Case,  80. 
Wallace  Case,  205. 
Watsou  y.  Williams,  201. 
Watson,  Clothing  Co.  v.,  260. 
Wells  V.  Caldwell,  217. 
Wilkes  Case,  142. 
Williams,  Watson  v.,  201. 


Wilson,  State  v.,  211,  250. 
Wilson  V.  Noonan,  244,  255. 
Woodward,  Dartmouth  College 

v.,  11,  223. 
Wrayham  Case,  206. 
Wooley  Case,  250. 
Worland  v.  State,  211. 
VVyatt  V.  People,  211. 
Zenger's  Case.  103. 


GENERAL   INDEX. 

The  References  are  to  Pages. 

Author's  views  on  contempt  in  1884,  while  judge,  9. 
Alien  and  Sedition  Laws  of  1798,  26. 

History  of  causes  leading  to  their  enactment,  123. 
Prosecutions  under  a  very  exciting  episode  in 

our  {)olitical  history,  166. 
Main  cause  of  defeat  of  Adams  for  the   presi- 
dency in  1800,  135. 
Augustus,  Emperor,  views  on  criticism  of  officials,   190. 
Blackstone  and  his  views  on  contempt,  22,  50,  195. 
Campbell,  Lord,  and  his  views  on  contempt  proceedings, 

42. 
Constitution  of  Missouri  of  1820,  28,  39,  47. 
Constitution  of  Missouri  of  1875,  36,  47,  61. 

The  judicial  power  under  did  not  extend  to 
punishment  by  the  process  of  attachment  for 
contempt  for  libels  in  newspapers  on  the 
courts,  39,  61. 
The  legislative  power  to  enact  contempt  statute 
existed  under,  47,  61. 
Contempt. 

Civil,  what  is,  202. 

Criminal,  what  is,  203. 

Direct,  what  is,  203. 

Constructive,  what  is,  203. 

Punishment  for,  either  punitive  or   executive, 

203-4. 
Power  to  punish  for,  arbitrary,  13. 
Contempt  cases,  issue  of  fact  in,  83. 

No  right  of  trial  by  jury  in,  18,  215. 
Contempt,  attachment  for,  due  process  of  law,  18,  222. 

(265) 


266  GENERAL    INDEX. 

The  References  are  to  Pages. 

Contempt,  power  to  punish  for  not  essential  to  courts,  67. 

Contempt  differentiated  from  libel,  84-7. 

Contempt. 

Statute  of  1825,  29. 
Statute  of  1835,  32,  169,  209. 
Statute  of  U.  S.,  32,  172. 
Co-ordinate  branches  of  the  government,  18,  28,  51,  55, 

95,  212,  213. 
Due  process  of  law,  proceeding  by  attachment  for  con- 
tempt is,  18,  222. 
Dred  Scott  Case,  10. 
Erskine  and  his  views  on  contempt  proceedings  and  right 

of  trial  by  jury  in,  22. 
Fox  Libel  Act,  The,  21. 
Fact,  issue  of,  in  contempt  cases,  83. 
Government,    co-ordinate   branches   of,   18,  28,  51,  55, 

95,  222,  213. 
Genet,  Citizen,  his  interference  in  American  affairs,  224. 
General  Assembly.     See  Legislature. 
History  of  the  liberty  of  the  press,  libel  and  contempt 
prior  to  1820,  19. 

Same  history  from  1820  to  1835,  29. 
Same  history  from  1835  to  1875,  33. 
Same  history  from  1875  to  1903,  36. 
Introduction,  1. 

Impeachment  of  McKean  and  Shippen,  24,  115,  119. 
Impeachment  of  Chase,  167. 
Impeachment  of  Peck,  31,  169. 
Inherent  power  of  courts,  none  outside  of  constitutional 

provisions,  76. 
Impeachment,  judges  subject  to,  98. 
Judicial  power,  The,  what  is,  51. 

Not  constant  and  unvarying  for  all  time  but  may 
be  changed  by  Legislature,  77. 


GENEUAL    INDEX.  2H7 

The  References  are  to  Pages. 

Judicial  power  under  Constitutions   of    1820  and    187.0 
over  contempts  did  not  extend  to  libelous  publica- 
tions reflecting  on  the  courts  or  their  judges,  39,  CI. 
Over  contempts  may  l)e  restrained  and  limited 
by  statute,  16. 

Judicial  power,  The,  can  be  exercised  in  concrete  cases 
only,  51 

Judges,  interest  of,  in  certain  cases,  41. 
May  be  impeached,  98. 

Jury  trial,  none  in  contempt  cases,  18,  215. 

Jury  determines  law  and  fact  in  libel  cases,  28,  36. 

Jury  to  fix    punishment   under   our   system   of    govern- 
ment, 88-9. 

Kentucky  Resolutions  of  1798,  134. 

Law,  Common,  status  of  Missouri,  27,  30,  5G. 

Has  force  there  only  by  virtue  of  statute,  27, 

Legislature,  power  of,  in  general,  50. 

Legislature  has  power  to  restrain  and  limit  jurisdiction 
of  courts  in  contempt  cases,  16. 

Legislative  power  under  constitutions  of  1820  and  1875, 
28,47. 

Legislative  power  extends  to  changes  of  rules  of  i)rop- 
erty  and  practice  and  evidence,  58. 

Legislative  power  may  exist,  though  subject  to  abuse,  81. 

Legislature,  sovereignty  rests  in,  50. 

Libel,  truth    of    charge   no  defense  at    common    law  in 
criminal  prosecutions,  21,  48,  50,  105,  113. 

Libel,  Fox  Act,  The,  21. 

Libel,  differentiated  from  contempt,  84-6. 

Libel,  never  any  claim  of  right  to,  41,  121. 

Lotteries  in  vogue  generally  till  1820-30,  148. 

Mute,  standing,  effect  of,  87. 

"  Millions  for  defense  but  not  a  cent  for  tribute,"  origin 
of  the  mctto,  127. 


268  GENERAL    INDEX. 

The  References  are  to  Pages. 

New  York,  controversy  in,  21. 

Necessity,  law  of,  as  applicable  to  courts  in  contempt 
cases,  does  not  exist,  07 

Nullification,    doctrine    of,  first    announced  in    United 
States,  123. 

Newspaper  in  U.  S.  in  1798,  130. 

How  divided  politically,  130. 

Newspaper  libel  of  courts  and  their  judges  not  con- 
tempts, 39,  61. 

Ofl3cial  acts,  publicity  of,  important,  90. 

Oglesby  Case,  the  subject  of  Shepherd's  criticism  of  the 
court,  7, 

Press,  liberty  of,  struggle  for,  19. 

Use  and  abuse  of  liberty  of,  90. 
Censorship  of,  91. 

Press,  liberty  of,  223. 

Press,  never  any  claim  of  right  of  libel  by,  41,  121. 

Press,  very  vituperative  from  1793  to  1804,  129. 

Press,  number  of  in  1798,  130. 

How  divided  politically,  130. 

"  Press,  the  most  unfettered,  is  a  press  the  most  re- 
strained," 133. 

Pennsylvania,  controversy  in,  24.  114,  122. 

Peck's  Impeachment,  31,  169. 

Publicity  of  ofiScial  acts,  importance  of,  19,  90. 

Prerogative,  a  hateful  term,  39. 

Punishment  for  violations  of  law  ought  to  be  limited  by 
statute,  96. 

Question^  stated  to  be  the  error  of  the  court  in  hold- 
ing the  contempt  statute  unconstitutional,  8,  17, 
18. 

Remedies  for  judicial  errors,  98. 

Remedy  by  impeachment,  98. 

Remedy  by  constitutional  amendment,  98. 


(JENKKAL    INDKX.  269 

The  Kefereiices  are  to  Pages. 

Remedies  —  Cont'd. 

Remedy  afforded  by  the  court  itself  in  overrul- 
ing its  decisions,  98. 
Revolution,  French,  The,    basis  for  division  of  political 

parties  in  the  United  States,  123. 
Resolutions  of  Virginia  and  Kentucky  of  1798,  134. 

Contained  the  germ  of  secession,  135. 
Statutes,  with  no  restrictive  words,  do  not  limit  the  com- 
mon law  powers  of  tlie  courts  over  contempts,  1.3. 
But  with    restrictive  words,  the   rule  is  other- 
wise, 16. 
Statutes,    rule    in  regard  to  holding  them     unconstitu- 
tional, 47. 
Statutes,  construction  of,   G2. 
Sedition  Law,  history  of,  123,  132. 

Cause  of  Adams'  defeat,  123. 
Fines  imposed   under,  refunded    by  Congress, 
148,  158. 
Scandalum  Magnatum,  190. 
Shepherd  Case. 

Missouri  contempt  statute  held  unconstitutional, 

210,  211. 
According   to.    Legislature    has    no   power   to 
abridge,  impair,  limit  or  regulate  the  power 
of    courts    to    punish    for   contempts,    210, 
211. 
The  court  assumed  and  exercised  the    judicial 

power  in,  95. 
The  court  treats    the    Legislative    department, 

not  as  an  equal  but  as  a  subordinate,  95. 
According  to,  power  of  courts  over  contempts 
unlimited  both  as  to  the  subject-matter  and 
the  punishment,  93-4. 
Such  power  is  dangerous,  93-4. 


270  GENERAL    INDEX. 

The  References  are  to  Pages. 

Shepherd  Case  —  Cont'd. 

Libelous  newspaper  publication  held  to  be  con- 
tempt, 16. 
Inherent  power  to  punish  for  contempts  held  to 
be  in  courts,  189,  209. 
Technicalities  may  be  important  in  vindication  of  inno- 
cence. 88. 
Theodosian  Code,  191. 
Truth  of  charge,  no  defense  in  criminal  prosecutions  for 

libel  at  common  law,  48-50. 
Treaty,  Jay,  The,  125. 
Vincinage,  right  to  be  tried  in,  90. 
Virginia  Resolutions  of  1798,  134. 
X  Y  Z  correspondence,  what  was,  131. 


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